Civil Liberties Board Says NSA Spying Is Illegal

Last week, President Obama announced a number of reforms to how the NSA conducts its business. Chief among those reforms was changing how the agency collects bulk cellphone metadata. Some felt that the program should be ended immediately though, and the Presidents own civil liberties board couldnt agree more.

The Privacy and Civil Liberties Oversight Board published a 238-page document today detailing their opinion on the NSAs collection of bulk telephone metadata. In stark contrast to just about everybody else in the executive branch, the board concluded in a 3-2 decision that it is illegal and should be ended immediately.

So, how did the Board come about to this conclusion? In the executive summary of the document, the board points out that Section 215 of the Patriot Act only allows 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. The current interpretation of Section 215 that allows the NSA to collect the phone records of every America bears almost no resemblance to that description, according to the board.

The Board then breaks down how the NSAs actions goes beyond what Section 215 allows in four parts:

First, the telephone records acquired under the program have no connection to any specific FBI investigation at the time of their collection. Second, because the records are collected in bulk potentially encompassing all telephone calling records across the nation they cannot be regarded as relevant to any FBI investigation as required by the statute without redefining the world relevant in a manner that is circular, unlimited in scope, and out of step with the case law from analogous legal contexts involving the production of records. Third, 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. Fourth, the statute permits only the FBI to obtain items for use in its investigation; it does not authorize the NSA to collect anything.

If that wasnt enough, the Board also says that Section 215 violates the Electronic Communications Privacy Act, or ECPA.

In addition, we conclude that the program violates the Electronic Communications Privacy Act. That statute prohibits telephone companies from sharing consumer records with the government except in response to specific enumerated circumstances, which do not include Section 215 orders.

Oh, but the trashing of Section 215 doesnt stop there. A bit further into the summary, the Board says that the common defense of the bulk metadata collection program (i.e. it stops terrorism) doesnt hold up in the face of reality:

we conclude that the Section 215 program has shown minimal value in safeguarding the nation from terrorism. Based on information provided to the Board, including classified briefings and documentation, 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. 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. And 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 NSAs program.

Despite saying that it has never directly contributed to the foiling of a terrorist plot, the Board plays devils advocate for a bit by saying that the bulk metadata collection program may help investigators in two ways. The first is that the program may offer additional leads regarding the contacts of terrorism suspects already known to investigators. The second can help investigators confirm suspicions about the target of an inquiry. Despite this, the Board feels that the bulk metadata collection program largely duplicates the FBIs own information gathering efforts. In other words, its redundant and contributes nothing of value.

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Civil Liberties Board Says NSA Spying Is Illegal