Review group says Obama can stop NSA phone surveillance 'at any time'
US President Barack Obama could heed a recommendation made one year ago by its own Privacy and Civil Liberties Oversight Board (PCLOB), and end the National Security Agency’s dragnet phone surveillance program “at any time,” the review group said in an assessment report published this week. But instead, the White House continues to let the NSA routinely sweep up metadata pertaining to millions of calls.
The assessment report, released by PCLOB on Thursday, comes one year after the group offered recommendations to the White House concerning Section 215 of the Patriot Act – a provision that compels telecommunication companies to regularly supply the NSA with call records collected in bulk from American customers – and six months after a similar report was published on the Foreign Intelligence Surveillance Act rule, Section 702, that lets the US government conduct electronic eavesdropping on the internet.
Yet while PLCOB acknowledges in the assessment that the White House has accepted the bulk of the 22 recommendations made in the two reports, not a single suggestion has been fully implemented – with the exception of one calling on the Foreign Intelligence Surveillance Court, a secretive body that authorizes these types of wiretaps, “to obtain technical assistance and expand opportunities for legal input from outside parties.”
According to a statement from the review group that accompanies the 29-page report, a key finding made during its assessment of the administration’s progress is that the government continues to collect phone data through Sec. 215 – even though it doesn’t have to, and, in the board’s opinion, shouldn’t.
“The Administration has not implemented the Board’s recommendation to halt the NSA’s telephone records program, which it could do at any time without congressional involvement. Instead, the Administration has continued the program, with modifications, while seeking legislation to create a new system for government access to telephone records under Section 215,” the statement reads in part.
A year ago, PCLOB concluded that the government should end its bulk phone record collection program due to “constitutional concerns under the First and Fourth Amendments,” and said the Sec. 215 program “raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value.”
“The Administration accepted our recommendation in principle. However, it has not ended the bulk telephone records program on its own, opting instead to seek legislation to create an alternative to the existing program,” this week’s report reads.
A bill that sought to strip from the government its ability to collect that metadata in bulk, the USA Freedom Act, ultimately failed to advance in the Senate when it was up for discussion last November. According to the review group, though, curbing that collection doesn’t rely squarely on Congress.
“It should be noted that the Administration can end the bulk telephone records program at any time, without congressional involvement,” the assessment report reads. “While legislation like the USA FREEDOM Act would be needed to retain the unique capabilities of the program without collecting telephone records in bulk, the Board examined those capabilities and concluded that they have provided only ‘limited value’ in combatting terrorism.”
“After scrutinizing classified materials regarding cases in which the program was used, and questioning the Intelligence Community about those cases, the Board explained that ‘we have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation.’”
David Medine, the chairman of PCLOB, told Spencer Ackerman at the Guardian that he believes a better solution would involve letting the telecoms log and maintain those records, as recommended in the failed Freedom Act.
“At some point, you have to draw the line and say you have to act on your own, because this program isn’t particularly effective. A better alternative is to go to the phone companies on a case-by-case basis,” Medine said.
“It’s now well past time for the administration to have developed alternative procedures and alternative relationships with the telephone companies to stop the daily flow of data to the government,” added James Dempsey, another PCLOB member.
Speaking to the National Journal, PCLOB's chairman suggested that a rapidly approaching expiration date concerning Sec. 215 could cancel the metadata collection program automatically if the White House doesn’t rein it in sooner. Amendments to the Foreign Intelligence Surveillance Act, or FISA, are set to roll off the rule books if Congress can’t agree to renew or revamp them by a June 1 deadline, at which point Sec. 215 could see its demise.
"We've gone through a year, and the program is still running," Medine said. "Congress may renew the whole provision. What we're effectively saying is, that shouldn't decide how the administration should handle the 215 program."
Details about the government’s reliance on Sec. 215 to collect metadata from the phone calls of Americans were revealed in June 2013 by Edward Snowden, a former NSA contractor who supplied national security reporters with a trove of classified documents detailing the intelligence community’s classified surveillance programs. Snowden, 31, currently resides in Russia and is wanted in the US for felony charges of theft and espionage.