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| US government privacy board says NSA bulk collection of phone data is illegal | |
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| The US government’s privacy board has sharply rebuked President Barack Obama over the National Security Agency’s mass collection of American phone data, saying the program defended by Obama last week was illegal and ought to be shut down. | The US government’s privacy board has sharply rebuked President Barack Obama over the National Security Agency’s mass collection of American phone data, saying the program defended by Obama last week was illegal and ought to be shut down. |
| The Privacy and Civil Liberties Oversight Board, an independent and long-troubled liberties advocate in the executive branch, issued a report on Thursday that concludes the NSA’s collection of every US phone record on a daily basis violates the legal restrictions of the statute cited to authorize it, section 215 of the Patriot Act. | The Privacy and Civil Liberties Oversight Board, an independent and long-troubled liberties advocate in the executive branch, issued a report on Thursday that concludes the NSA’s collection of every US phone record on a daily basis violates the legal restrictions of the statute cited to authorize it, section 215 of the Patriot Act. |
| The recommendations of the five-member board, which were not unanimous, amount to the strongest criticism within the US government yet of the highly controversial surveillance program, first disclosed by the Guardian thanks to whistleblower Edward Snowden. They give fresh support to congressional efforts at ending the practice on Capitol Hill – the main political battleground where the scope of surveillance will be readjusted this year. | The recommendations of the five-member board, which were not unanimous, amount to the strongest criticism within the US government yet of the highly controversial surveillance program, first disclosed by the Guardian thanks to whistleblower Edward Snowden. They give fresh support to congressional efforts at ending the practice on Capitol Hill – the main political battleground where the scope of surveillance will be readjusted this year. |
| According to the report, first published by the Washington Post and the New York Times, the privacy board found that the mass phone data collection was at best marginally useful for US counter-terrorism, a finding that went further than similar assessments by a federal judge and Obama’s own surveillance advisory board. | According to the report, first published by the Washington Post and the New York Times, the privacy board found that the mass phone data collection was at best marginally useful for US counter-terrorism, a finding that went further than similar assessments by a federal judge and Obama’s own surveillance advisory board. |
| Not only did the PCLOB conclude that the bulk surveillance was a threat to constitutional liberties, it could not find “a single instance” in which the program “made a concrete difference in the outcome of a terrorism investigation”. | Not only did the PCLOB conclude that the bulk surveillance was a threat to constitutional liberties, it could not find “a single instance” in which the program “made a concrete difference in the outcome of a terrorism investigation”. |
| “Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.” | “Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.” |
| The PCLOB tacitly rejected the NSA’s public claim that the bulk phone records collection may have made the difference in stopping a terrorist plot connected to cab drivers in San Diego – a rare case in which a government review body has specifically refuted the NSA’s aggressive post-Snowden PR campaign. | The PCLOB tacitly rejected the NSA’s public claim that the bulk phone records collection may have made the difference in stopping a terrorist plot connected to cab drivers in San Diego – a rare case in which a government review body has specifically refuted the NSA’s aggressive post-Snowden PR campaign. |
| “We believe that in only one instance over the past seven years has the program arguably contributed to the identification of an unknown terrorism suspect. Even in that case, the suspect was not involved in planning a terrorist attack and there is reason to believe that the FBI may have discovered him without the contribution of the NSA’s program,” it found. | “We believe that in only one instance over the past seven years has the program arguably contributed to the identification of an unknown terrorism suspect. Even in that case, the suspect was not involved in planning a terrorist attack and there is reason to believe that the FBI may have discovered him without the contribution of the NSA’s program,” it found. |
| Obama endorsed moving the bulk phone records collection out of the NSA’s hands and into those of a private entity, whose contours he left undefined in his Friday speech, his most extensive remarks on the surveillance to date. | Obama endorsed moving the bulk phone records collection out of the NSA’s hands and into those of a private entity, whose contours he left undefined in his Friday speech, his most extensive remarks on the surveillance to date. |
| But Obama accepted the intelligence community’s highly contested rationale that bulk phone records collection was necessary in order for the government to detect domestic connections to terrorism. “I believe it is important that the capability that this program is designed to meet is preserved,” Obama said. | But Obama accepted the intelligence community’s highly contested rationale that bulk phone records collection was necessary in order for the government to detect domestic connections to terrorism. “I believe it is important that the capability that this program is designed to meet is preserved,” Obama said. |
| National Security Council spokeswoman Caitlin Hayden said Thursday that the White House disagreed with the PCLOB’s assessment of the program’s legality. | National Security Council spokeswoman Caitlin Hayden said Thursday that the White House disagreed with the PCLOB’s assessment of the program’s legality. |
| “Consistent with the recent holdings of the United States district courts for the southern district of New York and southern district of California, as well as the findings of 15 judges of the Foreign Intelligence Surveillance Court on 36 separate occasions over the past seven years, the administration believes that the program is lawful. As the president has said though, he believes we can and should make changes in the program that will give the American people greater confidence in it,” Hayden said. | “Consistent with the recent holdings of the United States district courts for the southern district of New York and southern district of California, as well as the findings of 15 judges of the Foreign Intelligence Surveillance Court on 36 separate occasions over the past seven years, the administration believes that the program is lawful. As the president has said though, he believes we can and should make changes in the program that will give the American people greater confidence in it,” Hayden said. |
| The privacy board, which briefed Obama on its findings before his speech last week, recommends instead that the bulk collection ought to be ended outright, owing to its assessed lack of necessity and dubious legality. | The privacy board, which briefed Obama on its findings before his speech last week, recommends instead that the bulk collection ought to be ended outright, owing to its assessed lack of necessity and dubious legality. |
| Under the privacy board's recommendation, federal agencies would be able to obtain phone and other records under court orders in cases containing an individualized suspicion of wrongdoing. But there would be no storehouse, private or public, of telephone data beyond what the phone companies keep in the course of their normal business activities. | Under the privacy board's recommendation, federal agencies would be able to obtain phone and other records under court orders in cases containing an individualized suspicion of wrongdoing. But there would be no storehouse, private or public, of telephone data beyond what the phone companies keep in the course of their normal business activities. |
| That recommendation, which goes further than the one issued by Obama’s surveillance advisory board, bolsters a bipartisan bill in the House and Senate, called the USA Freedom Act, which aims to decisively end bulk domestic data collection. | That recommendation, which goes further than the one issued by Obama’s surveillance advisory board, bolsters a bipartisan bill in the House and Senate, called the USA Freedom Act, which aims to decisively end bulk domestic data collection. |
| But the privacy board assessment drew its own rebuke from Representative Mike Rogers of Michigan, a former FBI agent and chairman of the House intelligence committee. | But the privacy board assessment drew its own rebuke from Representative Mike Rogers of Michigan, a former FBI agent and chairman of the House intelligence committee. |
| “I am disappointed that three members of the board decided to step well beyond their policy and oversight role and conducted a legal review of a program that has been thoroughly reviewed,” Rogers said in a pre-dawn statement that castigated the PCLOB for going “outside its expertise” in criticizing the utility of the bulk phone data collection. | “I am disappointed that three members of the board decided to step well beyond their policy and oversight role and conducted a legal review of a program that has been thoroughly reviewed,” Rogers said in a pre-dawn statement that castigated the PCLOB for going “outside its expertise” in criticizing the utility of the bulk phone data collection. |
| “As those of us with law enforcement experience know, successful investigations use all available tools – there often is no ‘silver bullet’ that alone thwarts a plot,” Rogers said. The White House did not have an initial reaction. | “As those of us with law enforcement experience know, successful investigations use all available tools – there often is no ‘silver bullet’ that alone thwarts a plot,” Rogers said. The White House did not have an initial reaction. |
| Two of the board members, Rachel L Brand and Elisebeth Collins Cook, both lawyers in the George Bush-era Justice Department, dissented on the finding that the bulk phone data collection was illegal. | Two of the board members, Rachel L Brand and Elisebeth Collins Cook, both lawyers in the George Bush-era Justice Department, dissented on the finding that the bulk phone data collection was illegal. |
| The three other members – chairman David Medine, retired federal judge Patricia Wald, and civil liberties advocate James X Dempsey – rejected the government’s argument, reaffirmed for years by a secret surveillance court, that the mass phone records collection was justified under a section of the Patriot Act that permits the government to amass records “relevant” to a terrorism inquiry. | The three other members – chairman David Medine, retired federal judge Patricia Wald, and civil liberties advocate James X Dempsey – rejected the government’s argument, reaffirmed for years by a secret surveillance court, that the mass phone records collection was justified under a section of the Patriot Act that permits the government to amass records “relevant” to a terrorism inquiry. |
| But the board’s majority found that bulk collection could not be “relevant” to such an investigation “without redefining the word relevant in a manner that is circular, unlimited in scope, and out of step with the case law from analogous legal contexts involving the production of records”. | But the board’s majority found that bulk collection could not be “relevant” to such an investigation “without redefining the word relevant in a manner that is circular, unlimited in scope, and out of step with the case law from analogous legal contexts involving the production of records”. |
| The board found that such widespread and suspicionless data collection could have a “chilling effect” on Americans’ constitutional rights. Its conclusion echoed Senator Ron Wyden, an Oregon Democrat on the intelligence committee, who has likened the metadata collection to a “human relations database". | The board found that such widespread and suspicionless data collection could have a “chilling effect” on Americans’ constitutional rights. Its conclusion echoed Senator Ron Wyden, an Oregon Democrat on the intelligence committee, who has likened the metadata collection to a “human relations database". |
| Civil libertarians greeted the PCLOB report as a vindication, particularly after the Obama speech fell short of their expectations. | Civil libertarians greeted the PCLOB report as a vindication, particularly after the Obama speech fell short of their expectations. |
| “The board’s report makes even clearer that the government’s surveillance policies, as well as our system of oversight, are in need of far-reaching reform. The release of this long-awaited report should spur immediate action by both the administration and Congress,” said ACLU deputy legal director Jameel Jaffer. | “The board’s report makes even clearer that the government’s surveillance policies, as well as our system of oversight, are in need of far-reaching reform. The release of this long-awaited report should spur immediate action by both the administration and Congress,” said ACLU deputy legal director Jameel Jaffer. |
| Senator Patrick Leahy, the Vermont Democrat who chairs the judiciary committee and co-authored the USA Freedom Act, said the report added to “the growing chorus” that wanted to end the phone metadata dragnet. | Senator Patrick Leahy, the Vermont Democrat who chairs the judiciary committee and co-authored the USA Freedom Act, said the report added to “the growing chorus” that wanted to end the phone metadata dragnet. |
| “The report reaffirms the conclusion of many that the Section 215 bulk phone records program has not been critical to our national security, is not worth the intrusion on Americans’ privacy, and should be shut down immediately,” Leahy said. | “The report reaffirms the conclusion of many that the Section 215 bulk phone records program has not been critical to our national security, is not worth the intrusion on Americans’ privacy, and should be shut down immediately,” Leahy said. |
| Representative Adam Schiff, a California Democrat on the intelligence committee, predicted the report would spell “the final end of the government's bulk collection of telephone metadata”. | Representative Adam Schiff, a California Democrat on the intelligence committee, predicted the report would spell “the final end of the government's bulk collection of telephone metadata”. |
| The PCLOB is not finished with its assessment of NSA surveillance. It plans in the coming weeks to issue another report evaluating the NSA’s collection of bulk foreign Internet communications, which have included those with Americans “incidentally” collected. | The PCLOB is not finished with its assessment of NSA surveillance. It plans in the coming weeks to issue another report evaluating the NSA’s collection of bulk foreign Internet communications, which have included those with Americans “incidentally” collected. |
| It also amounts to the first major test of the board, created in 2004 as a post-9/11 reform. A decade’s worth of problems with independence, member vacancies and other issues meant the PCLOB did not functionally operate until 2013, when it was unexpectedly confronted by the Snowden revelations. | It also amounts to the first major test of the board, created in 2004 as a post-9/11 reform. A decade’s worth of problems with independence, member vacancies and other issues meant the PCLOB did not functionally operate until 2013, when it was unexpectedly confronted by the Snowden revelations. |
| Chairman Medine told the Guardian last Thursday that he felt the privacy board rose to the challenge, even though Obama’s speech preceded its own report, a White House decision that raised eyebrows in the civil liberties community. | Chairman Medine told the Guardian last Thursday that he felt the privacy board rose to the challenge, even though Obama’s speech preceded its own report, a White House decision that raised eyebrows in the civil liberties community. |
| “I believe we’ve risen to the task, and are demonstrating both in the United States and around the world that the United States has a vigorous oversight body that will take a close look at these programs, have full access to them, and will be able to advise whether the programs do strike the right balance,” Medine said. | “I believe we’ve risen to the task, and are demonstrating both in the United States and around the world that the United States has a vigorous oversight body that will take a close look at these programs, have full access to them, and will be able to advise whether the programs do strike the right balance,” Medine said. |