NSA Phone Program Is Illegal, Privacy Board Says

The government board deals another blow to the controversial spying program.

A sign stands outside the National Security Administration (NSA) campus in Fort Meade, Md., Thursday, June 6, 2013. (National Journal)

The National Security Agency's program collecting records on virtually all U.S. phone calls violates the law, according to a government privacy board.

In a 238-page report released Thursday, the Privacy and Civil Liberties Oversight Board calls for an end to the program, saying it has never stopped a terrorist attack and threatens the privacy of millions of Americans.

The report is yet another blow to the controversial program, which was first revealed by Edward Snowden last year.

Last Friday, President Obama announced his support for certain reforms to the program, including requiring court approval for the NSA to search through the phone data and moving the database out of the government's hands. But Obama insisted that the NSA keep its capability to mine millions of phone records, even if the structure of the program is changed.

Congress created the Privacy and Civil Liberties Oversight Board at the recommendation of the 9/11 Commission, which called for an independent government agency to guard privacy rights. The small agency only recently became operational, and Thursday's report is its first major salvo against government surveillance.

The board voted 3-2 to back the conclusions that the bulk collection of phone records is illegal and should end. But all five board members called for a series of immediate changes, such as requiring court approval for searches, reducing how long the NSA holds the data, and limiting the degrees of separation analysts can stray from their initial target from three to two. Obama backed similar reforms in his speech last Friday.

The board's recommendations go farther than the advisory group President Obama created last year to review the NSA's program. But that review group also called for major changes to the bulk data collection and concluded the program has not thwarted any terrorist attacks.

The NSA claims that bulk collection is authorized under Section 215 of the Patriot Act, which gives the government the power to collect business records that are "relevant" to a terrorism investigation. The Foreign Intelligence Surveillance Court has approved the NSA's argument, saying all U.S. phone calls are "relevant" because the agency needs the full database to map potential terrorist connections.

But the privacy board called the government's justification "circular" and "untenable."

"If Section 215's relevance requirement is to serve any meaningful function, however, relevance cannot be premised on the government's desire to use a tool whose very operation depends on collecting information without limit," the board wrote.

The privacy group also claimed the program violates the Electronic Communications Privacy Act, which requires that telephone companies only turn over records to the government in certain circumstances.

The board members wrote that the program raises constitutional questions under the First and Fourth Amendment. They noted that the Supreme Court ruled in 1979 that police do not need a warrant to obtain records such as phone numbers, call times, and call durations. But the board argued that the Supreme Court never envisioned the kind of sweeping surveillance the NSA is now conducting, and said it is unclear how the current Supreme Court would view the program.

A federal judge in Washington ruled last month that the NSA's phone-data collection is unconstitutional, but other federal judges in New York and California have upheld the program.

Caitlin Hayden, a White House spokeswoman, said Obama and other administration officials met with the privacy-board members multiple times as they were preparing their report, and he took their views into account while preparing last week's speech.

But she said the White House rejects the board's finding that the NSA program is illegal.

"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," she added.

Senate Judiciary Committee Chairman Patrick Leahy said the board's recommendations "add to the growing chorus calling for an end to the government's dragnet collection of Americans' phone records."

"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," he said.

Leahy and Republican Rep. Jim Sensenbrenner, the original author of the Patriot Act, are pushing the USA Freedom Act, which would end the bulk collection and impose other limits on the NSA's powers.

The privacy board also recommended that Congress create an independent advocate to push for privacy rights before the Foreign Intelligence Surveillance Court. The court currently only hears arguments from the government in favor of surveillance.

The board said the government should release more information to the public about the NSA's programs and the intelligence court's rulings.

The report was backed by Board Chairman David Medine, a former Federal Trade Commission lawyer; James X. Dempsey, a privacy advocate with the Center for Democracy and Technology; and Patricia M. Wald, a retired federal judge.

Rachel L. Brand and Elisebeth Collins Cook, both former lawyers for the Bush administration, agreed with some of the findings, but not that the program is illegal and should end.

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