Watchdog Group Finds NSA Phone Data Program Illegal

Have you ever seen a more ominous building? Source: National Security Agency.

A report issued Thursday by a government watchdog struck down the National Security Agency’s (or, NSA) bulk collection of phone calls, saying it is illegal. The Privacy and Civil Liberties Oversight Board (or, PCLOB) undertook the investigation. The Board consists of five members, two of whom rejected the findings. Rachel L. Brand and Elisebeth Collins Cook disagreed with the conclusion that the program was illegal. Brand and Cook were Justice Department lawyers under the Bush administration.

The report goes further than President Obama did in a speech last week when he discussed reforming the NSA. Although there are points where the President and PCLOB agree, the President wished for the program overall to remain intact. In determining the legality, the watchdog was concerned with Section 215 and 702 programs and the Foreign Intelligence Surveillance (or, FISA) Court. Of the report’s seven sections, five discuss Section 215; another report will address the Section 702 program.

In order to evaluate the NSA program, the PCLOB studied classified briefings, met with members of the White House Staff, a former FISA court judge, advocates on both sides of the issue, and companies involved in technology and communications. During the investigation, the intelligence agencies gave full support to the PCLOB.

The report does not find “any evidence of bad faith or misconduct on the part of any government officials or agents involved with the program. Rather, the compliance issues were recognized by the FISC — and are recognized by the Board — as a product of the program’s technological complexity and vast scope, illustrating the risks inherent in such a program.”

Section 215, which was “designed to enable the FBI to acquire records that a business has in its possession, as part of an FBI investigation, when records are relevant to the investigation.” However, the PCLOB states, the NSA’s program does not closely mirror what is stipulated in Section 215. Even though the “program has been conducted in good faith, section 215 does not provide an adequate legal basis to support the program.”

It takes issue with four facets of the bulk collection of telephone calls. First, when the records are collected, there is no direct connection to an FBI investigation; second, they fail to comply with a stature that requires information collected be relevant to an FBI investigation. Third, companies are obliged to provide calls as they occur instead of surrendering existing records. This places the program at odds with FISA, and finally, the stature being used is authorization for the FBI, not the NSA.

In the report, terrorism is recognized as a threat, but so is the potential for “mission creep” by the government. The programs not only invade privacy, but “permitting the government to routinely collect the calling records of the entire nation fundamentally shifts the balance of power between the state and its citizens.” There is the potential the information collected could be used for blackmail or to abuse citizens. It might curtail free speech because citizens may believe their calling patterns are being used against them, and communication will become less frequent.

Steps in the direction of transparency have been taken, but the report says more needs to be done. “The Board believes that the government must take the initiative and formulate long-term solutions that promote greater transparency for government surveillance policies more generally in order to inform public debate on technology, national security, and civil liberties going beyond the current controversy.” This is the duty of each branch of government, and the FISA court as well.

Ultimately, the report lists twelve recommendations. It first calls for the end of the Section 215 bulk telephone records program, because there is not legal foundation for its existence. Next, extra safeguards to privacy should be immediately added to the existing 215 program. Two items under this subheading included decreasing the retention period from five to three years for records and lessening the number of “hops” used in chain contacting from three to two. The latter was also proposed last week by President Obama.

Third, legislation needs to be passed by Congress that will allow the Foreign Intelligence Surveillance Court (or, FISC) to hear independent views, not only governmental views, when a FISC judge finds additional views would be merited. Attorneys who serve on the panel should be selected from the private sector. The fourth idea also was for Congressional action, this time to expand the appellate review of FISC decisions, which will bolster the judicial integrity of the court.

Fifth, outside parties need to be able to provide legal input. The Board said this could be given by technical experts, or through amicus participation. In its sixth recommendation, the Board detailed the need for more transparency through a policy that strikes a better balance with national security, primarily through the declassification of opinions by FISC judges. The seventh part was related to this, with declassification of reviews, orders, and opinions when they “involve novel interpretations of FISA, or other significant questions of law, technology or compliance.”

The Attorney General — the Board said in point eight — needed to “regularly and publicly report information” when there has been Special Advocate participation. A Special Advocate is a lawyer, who has received security clearance, and is involved in a FISA court review. Next, the Attorney General needs to report to the PCLOB about any government activity under FISA. The final two recommendations told the government to develop a criteria for transparency, and to make public the scope of surveillance authorities that affect Americans.

The PCLOB was established to review measures taken by the executive branch that are meant to protect the U.S. from terrorism. The board is bipartisan, exists within the executive branch, and its current form was created by the Implementing Recommendations of the 9/11 Commission Act of 2007. It exists to balance the nation’s security needs with privacy concerns.

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