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Thursday, January 23, 2014

NSA's phone data collection illegal, says privacy board

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 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.

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.” 

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.
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.

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.

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.

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.

“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.
Read more at: Theguardian

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