Late last week, the US Privacy and Civil Liberties Oversight Board (PCLOB) released its long-awaited report concluding that the US National Security Agency’s (NSA) program to collect the telephone records of domestic calls is ineffective, illegal, unconstitutional, and should stop. In the simplest terms possible, PCLOB said Section 215 of the USA PATRIOT Act — the statute upon which the NSA claimed legality for the surveillance program — provides little to no legal support for the NSA’s activities:
“Section 215 is designed to enable the FBI to acquire records that a business has in its possession, as part of an FBI investigation, when those records are relevant to the investigation. Yet the operation of the NSA’s bulk telephone records program bears almost no resemblance to that description. While the board believes that this program has been conducted in good faith to vigorously pursue the government’s counterterrorism mission and appreciates the government’s efforts to bring the program under the oversight of the FISA court, the Board concludes that Section 215 does not provide an adequate legal basis to support the program.”
The Privacy and Civil Liberties Oversight Board (PCLOB) Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court, 23 January 2014.
The PCLOB identifies four areas of noncompliance by the NSA with regard to Section 215:
- “… the telephone records acquired under the program have no connection to any specific FBI investigation at the time of their collection”
- “… because the records are collected in bulk… they cannot be regarded as ‘relevant’ to any FBI investigation as required by the statute…”
- “… the program operates by putting telephone companies under an obligation to furnish new calling records on a daily basis as they are generated (instead of turning over records already in their possession) — an approach lacking foundation in the statute and one that is inconsistent with FISA as a whole”
- “… the statute permits only the FBI to obtain items for use in its investigations; it does not authorize the NSA to collect anything”
Additionally, the PCLOB concludes that the NSA’s bulk domestic telephone call surveillance program violates the Electronic Communications Privacy Act (EPCA).
Where President Obama called for inconsequential cosmetic changes to the NSA’s surveillance activities in a 17 January 2014 speech, the PCLOB is recommending cessation of the NSA’s bulk domestic telephone call surveillance program. Ellen Nakashima writing for the Washington Post reports that the independent board, which is part of the executive branch of US government, “had shared its conclusions with Obama in the days leading up to his speech.” Nakashima adds that “The divided panel also concluded that the program raises serious threats to civil liberties, has shown limited value in countering terrorism, and is not sustainable from a policy perspective.”
The five-person PCLOB was not unanimous in its findings. Rachel Brand and Elisebeth Collins — both members of President George W. Bush’s Justice Department — concluded that the NSA surveillance program was legal and should continue with modifications affording additional privacy protections. In separate dissenting opinions, Brand and Collins wrote that the PCLOB should have stuck to its policy knitting and left any legal analysis to the courts. James X. Dempsey (Center for Democracy & Technology), David Medine (a member of President Bill Clinton’s Federal Trade Commission and PCLOB chair), and Patricia M. Wald (a retired federal appeals court judge appointed by President Jimmy Carter) all supported ending the NSA surveillance program.
Predictably, US Representative Mike Rogers (R-Michigan) was quick with a sound bite deriding the PCLOB findings. After acknowledging he was “still studying” the report he nonetheless opined that, “… I agree with the two Board dissenters that the Board should advise policymakers on civil liberties and privacy aspects of national security programs, and not partake in unwarranted legal analysis. …”
Interestingly, the same day the PCLOB report was released, the Republican National Committee voted to adopt a resolution calling for an investigation of the NSA’s surveillance programs.
With specific regard to advising policymakers on civil liberties and privacy, the PCLOB report was remarkably clearly written:
“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.
…
“By indefinitely collecting information about all Americans’ telephone calls, the NSA’s telephone records program clearly implicates the First Amendment freedoms of speech and association. The connections revealed by the extensive database of telephone records gathered under the program will necessarily include relationships established among individuals and groups for political, religious, and other expressive purposes. Compelled disclosure to the government of information revealing these associations can have a chilling effect on the exercise of First Amendment rights.”
The PCLOB report was not all milk, honey, and good tidings for civil liberties and privacy advocates. Specifically, the report calls for the government to use national security letters to carry out counterterrorism surveillance activities. National security letters allow the government to obtain details of its citizens’ confidential financial information and communications without judicial oversight and are thought to be widely used specifically because they don’t require prior court approval. Instead of requiring a probable-cause warrant, all that’s needed for a national security letter is a certification by an FBI field office that the information sought is relevant to a counterterrorism investigation.
Next up, the PCLOB takes a look at the NSA’s surveillance activities relevant to Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments