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Advisory panel says NSA surveillance program should be ended

A government advisory panel said Thursday that the bulk data collection program run by the National Security Agency is illegal and should be halted.  

Recommendations by the bipartisan Privacy and Civil Liberties Oversight Board, which was created by Congress last decade with a mandate to conduct oversight and recommendations to preserve individual liberty, are sure to inflame the ongoing debate over the National Security Agency and its surveillance practices. 

Full text of the report (.pdf)

Among the findings of the panel:

  • Section 215 the Patriot Act “does not provide an adequate legal basis” to support the NSA’s collection of records of telephone calls, branding the practice illegal in the panel’s view.
  • The NSA program violates a federal law called the Electronic Communications Privacy Act which prohibits telephone companies from giving customer records to the government except in response to a specific search warrant. 
  • The data collection done under the Section 215 program “has shown minimal value in safeguarding the nation from terrorism.” The board members said that based on the classified briefings and documents they received, “we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation.”

The board's opinions are advisory in nature only, and don't have the force of law.

Low-profile advisory board adds fuel to snooping debate

The board's most significant recommendation involves ending the government's collection, storage and monitoring of so-called metadata, bulk telephone and email records. The board went a step further, and characterized the practice as likely illegal. 

It also calls for immediate changes to the program in its current form, namely by cutting the retention period for metadata from five years to three years.

Two Republican members of the board, though, issued dissents from the final report, defending the data collection program.

The program must be reauthorized by Congress by June of 2015, or face automatic expiration. The House Judiciary Committee was set to hold a hearing on metadata collection in the coming weeks, its Republican chairman said Thursday.

The recommendations come after President Barack Obama last week defended collection of bulk data as an invaluable tool in the government's efforts to combat terrorism. For that, Obama assembled his own review task force whose recommendations formed the basis for the reforms the president announced last week.

"The review group turned up no indication that this database has been intentionally abused," Obama said last Friday at the Justice Department. "And I believe it is important that the capability that this program is designed to meet is preserved."

National Security Council spokeswoman Caitlin Hayden further defended the program.

"Specifically on the Section 215 bulk telephony metadata program, we disagree with the Board's analysis on the legality of the program," she said, adding that Obama had met with the board, and had incorporated elements of its report into his speech last week on NSA practices.

The advisory panel issued several other recommendations, as well. Its report called for broadening the ability to appeal rulings of the Foreign Intelligence Surveillance Court (FISC) and increasing transparency by including outside advocates at the FISC and declassifying more of the court's decision.

Obama's recommendations last week incorporated several of the PCLOB's proposals, namely the inclusion of outside advocates before the FISC. But Obama largely preserved the structure of the metadata program, though he asked the NSA and Attorney General Eric Holder to create a program under which the government would no longer store the data, and have to seek a court's permission before querying it.

If nothing else, Thursday's report is sure to add the cauldron of debate in Washington over the collection of bulk data, a debate that seemed far from settled after the president's speech last week.

Rep. Mike Rogers, R-Mich., the chairman of the House Intelligence Committee, said he was "disappointed" 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."

Opponents of the metadata program, though, heralded the report as a validation of their criticism of the NSA surveillance practice as unlawful.

"The recommendations of the Privacy and Civil Liberties Oversight Board add to the growing chorus calling for an end to the government’s dragnet collection of Americans’ phone records," said Sen. Patrick Leahy, D-Vt., the chairman of the Senate Judiciary Committee. "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."

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