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| 'This overreach is unacceptable': the case against NSA bulk collection | 'This overreach is unacceptable': the case against NSA bulk collection |
| (35 minutes later) | |
| On Thursday, the executive branch’s privacy watchdog, the Privacy and Civil Liberties Oversight Board, became the latest independent group to have looked into the US government practice of collecting citizens’ phone data in bulk – and to call for it to stop. | On Thursday, the executive branch’s privacy watchdog, the Privacy and Civil Liberties Oversight Board, became the latest independent group to have looked into the US government practice of collecting citizens’ phone data in bulk – and to call for it to stop. |
| The PCLOB found that bulk collection under section 215 of the Patriot Act constituted an invasion of privacy with insufficient oversight and negligible national security benefits. | The PCLOB found that bulk collection under section 215 of the Patriot Act constituted an invasion of privacy with insufficient oversight and negligible national security benefits. |
| The list of people and organizations to have reached the same conclusion includes hundreds of members of Congress, a federal judge, a presidential panel, the world’s biggest technology companies, civil liberties organizations and privacy advocates, and Barack Obama himself, before he was president. | The list of people and organizations to have reached the same conclusion includes hundreds of members of Congress, a federal judge, a presidential panel, the world’s biggest technology companies, civil liberties organizations and privacy advocates, and Barack Obama himself, before he was president. |
| Here’s some of what they’ve said about the bulk, suspicionless collection of Americans' data: | |
| Privacy and Civil Liberties Oversight Board | Privacy and Civil Liberties Oversight Board |
| In a 238-page report issued on Thursday, the board recommended that the program end and the database be purged: | |
| The Section 215 bulk telephone records program lacks a viable legal foundation under Section 215, implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value. As a result, the board recommends that the government end the program. | |
| Without the current Section 215 program, the government would still be able to seek telephone calling records directly from communications providers through other existing legal authorities. The board does not recommend that the government impose data retention requirements on providers in order to facilitate any system of seeking records directly from private databases. | |
| Once the Section 215 bulk collection program has ended, the government should purge the database of telephone records that have been collected and stored during the program’s operation, subject to limits on purging data that may arise under federal law or as a result of any pending litigation. | Once the Section 215 bulk collection program has ended, the government should purge the database of telephone records that have been collected and stored during the program’s operation, subject to limits on purging data that may arise under federal law or as a result of any pending litigation. |
| Review group on intelligence and communications technology | Review group on intelligence and communications technology |
| In a 308-page report delivered to the president in December, the group appointed by Obama recommended that a database of US phone records should be maintained, but not by the government: | In a 308-page report delivered to the president in December, the group appointed by Obama recommended that a database of US phone records should be maintained, but not by the government: |
| We recommend that Congress should end such storage and transition to a system in which such metadata is held privately for the government to query when necessary for national security purposes. | We recommend that Congress should end such storage and transition to a system in which such metadata is held privately for the government to query when necessary for national security purposes. |
| In our view, the current storage by the government of bulk metadata creates potential risks to public trust, personal privacy, and civil liberty. We recognize that the government might need access to such metadata, which should be held instead either by private providers or by a private third party … Consistent with this recommendation, we endorse a broad principle for the future: as a general rule and without senior policy review, the government should not be permitted to collect and store mass, undigested, non-public personal information about US persons for the purpose of enabling future queries and data-mining for foreign intelligence purposes. | |
| US district court judge Richard Leon | US district court judge Richard Leon |
| In a ruling filed on 16 December 2013, Leon called bulk telephone data collection an “arbitrary invasion” of privacy and said it likely violated the constitution. | |
| The almost-Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979 [...] | |
| I cannot imagine a more "indiscriminate" and "arbitrary invasion" than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on "that degree of privacy" that the Founders enshrined in the fourth amendment. Indeed, I have little doubt that the author of our constitution, James Madison, who cautioned us to beware "the abridgement of freedom of the people by gradual and silent encroachments by those in power," would be aghast. | |
| Thus, plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the government’s interest in collecting and analysing bulk telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the fourth amendment. | Thus, plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the government’s interest in collecting and analysing bulk telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the fourth amendment. |
| Senator Patrick Leahy | Senator Patrick Leahy |
| In a statement on 29 October, the judiciary committee chairman recommended that the program end: | |
| Last week, the assistant to the president for homeland security and counter-terrorism, Lisa Monaco, stated that the government should only collect data “because we need it and not just because we can”. I completely agree – and that is why the government’s dragnet collection of phone records should end. The government has not made a compelling case that this program is an effective counter-terrorism tool, especially when balanced against the intrusion on Americans’ privacy. In fact, both the director and the deputy director of the NSA have testified before the judiciary committee that there is no evidence that the Section 215 phone records collection program helped to thwart dozens or even several terrorist plots. | |
| Congressman Jim Sensenbrenner | Congressman Jim Sensenbrenner |
| In a June statement, the Patriot Act co-author recommended that the program end: | In a June statement, the Patriot Act co-author recommended that the program end: |
| The scope of the NSA’s metadata program – peering into the lives of hundreds of millions of innocent Americans – is incredibly troubling. There is no legitimate explanation for tracking the numbers, locations, times and duration of the calls of every American. The collection and retention of all telephone records coming in and out of the United States is excessive and does not fall within the guidelines of Section 215. [...] | The scope of the NSA’s metadata program – peering into the lives of hundreds of millions of innocent Americans – is incredibly troubling. There is no legitimate explanation for tracking the numbers, locations, times and duration of the calls of every American. The collection and retention of all telephone records coming in and out of the United States is excessive and does not fall within the guidelines of Section 215. [...] |
| This executive overreach is unacceptable and further denigrates Americans’ trust in Washington. | This executive overreach is unacceptable and further denigrates Americans’ trust in Washington. |
| A large, intrusive government – however benevolent it claims to be – is not immune from the simple truth that centralized power threatens liberty. Our government’s legitimacy rests on its accountability to the people. And Americans are increasingly weary that Washington is invading the privacy rights guaranteed to us by the Fourth Amendment. | A large, intrusive government – however benevolent it claims to be – is not immune from the simple truth that centralized power threatens liberty. Our government’s legitimacy rests on its accountability to the people. And Americans are increasingly weary that Washington is invading the privacy rights guaranteed to us by the Fourth Amendment. |
| Supporters of the USA Freedom Act | Supporters of the USA Freedom Act |
| The legislation, co-authored by Leahy and Sensenbrenner, would end bulk metadata collection and set new conditions for intelligence agencies to conduct searches of US citizens. The bill has at least 120 co-sponsors in the House and 16 in the Senate. | The legislation, co-authored by Leahy and Sensenbrenner, would end bulk metadata collection and set new conditions for intelligence agencies to conduct searches of US citizens. The bill has at least 120 co-sponsors in the House and 16 in the Senate. |
| In addition, a long and diverse list of organizations and companies support the bill, including the American Civil Liberties Union, the National Rifle Association, the Project on Government Oversight, Microsoft, Apple, Yahoo, Facebook, AOL, Google, LinkedIn and Mozilla. | In addition, a long and diverse list of organizations and companies support the bill, including the American Civil Liberties Union, the National Rifle Association, the Project on Government Oversight, Microsoft, Apple, Yahoo, Facebook, AOL, Google, LinkedIn and Mozilla. |
| 205 members of Congress | |
| On 24 July 2013, 205 members of the House of Representatives voted in favor of the Amash-Conyers amendment to end the indiscriminate collection of telephone records. It was “one of the closest votes in a long time for civil liberties”, observed national security journalist Marcy Wheeler. | |
| The roll-call for the vote is here. | |
| The ACLU | The ACLU |
| The advocacy group has sued the government to stop the bulk collection of phone data and campaigned in favor of legislation to end it. “This program not only exceeds the authority given to the government by Congress, but it violates the right of privacy protected by the fourth amendment, and the rights of free speech and association protected by the first amendment,” the group has said in a statement. | The advocacy group has sued the government to stop the bulk collection of phone data and campaigned in favor of legislation to end it. “This program not only exceeds the authority given to the government by Congress, but it violates the right of privacy protected by the fourth amendment, and the rights of free speech and association protected by the first amendment,” the group has said in a statement. |
| Despite the revelations, Congress and the public have yet to receive the full story about how the Patriot Act is being used to collect information on Americans. To bring greater transparency to the NSA's surveillance under the Patriot Act, the ACLU filed two motions with the secretive FISC asking it to release to the public its opinions authorizing the bulk collection of Americans' data by the NSA, and we are continuing to litigate a Freedom of Information Act lawsuit that we filed in 2011 demanding the government release information about its use and interpretation of Section 215. Read about Section 215 – and other unconstitutional provisions of the Patriot Act – here. | Despite the revelations, Congress and the public have yet to receive the full story about how the Patriot Act is being used to collect information on Americans. To bring greater transparency to the NSA's surveillance under the Patriot Act, the ACLU filed two motions with the secretive FISC asking it to release to the public its opinions authorizing the bulk collection of Americans' data by the NSA, and we are continuing to litigate a Freedom of Information Act lawsuit that we filed in 2011 demanding the government release information about its use and interpretation of Section 215. Read about Section 215 – and other unconstitutional provisions of the Patriot Act – here. |
| Barack Obama | Barack Obama |
| On the Senate floor in 2005, opposing Patriot Act reauthorization: | On the Senate floor in 2005, opposing Patriot Act reauthorization: |
| This is legislation that puts our own Justice Department above the law … If someone wants to know why their own government has decided to go on a fishing expedition through every personal record or private document, through the library books that you read, through the phone calls that you made, the emails that you sent, this legislation gives people no rights to appeal the need for such a search in a court of law. No judge will hear your plea. No jury will hear your case. This is just plain wrong … Giving law enforcement the tools that they need to investigate suspicious activities is one thing. And it’s the right thing. But doing it without any real oversight seriously jeopardizes the rights of all Americans, and the ideals America stands for. | This is legislation that puts our own Justice Department above the law … If someone wants to know why their own government has decided to go on a fishing expedition through every personal record or private document, through the library books that you read, through the phone calls that you made, the emails that you sent, this legislation gives people no rights to appeal the need for such a search in a court of law. No judge will hear your plea. No jury will hear your case. This is just plain wrong … Giving law enforcement the tools that they need to investigate suspicious activities is one thing. And it’s the right thing. But doing it without any real oversight seriously jeopardizes the rights of all Americans, and the ideals America stands for. |
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