Review board to Obama: Shut down NSA program

A bipartisan board charged with analyzing the National Security Agency's bulk data-collection practices voted 3-2 to recommend ending the mass perusal of phone records of U.S. citizens, a more sweeping step than reform efforts outlined by President Barack Obama last week.

The Privacy and Civil Liberties Oversight Board, in a much-anticipated report released Jan. 23, recommended shuttering the so-called "215 program," named for the section of the 2001 anti-terrorism law known as the Patriot Act, which authorized the government to scoop up communications data. Two dissenters on the board who voted against halting the 215 program defended the surveillance activities as critical to national security.

In a public meeting in Washington on Jan. 23, the five board members outlined their decision, which goes a step beyond the presidential directive issued Jan. 17 addressing the same subject. The directive called for a series of tweaks to the program, without shutting down the collection of phone records. The PCLOB decision recommends ending U.S. telephone surveillance.

"The bottom line of our report: The majority of the PCLOB believes that the 215 program is inconsistent with the statute that authorizes it on a number of grounds," said Chairman David Medine. He noted that the program provides no connection to a specific FBI investigation at the time of collection, and since it potentially encompasses all telephone records across the nation, it cannot be regarded as relevant to a particular investigation. He also noted that the statute authorizes only the FBI to collect from telephone providers, yet it is the NSA that receives the information.

"The majority of the board takes the view that the 215 program is not authorized by statute, it raises serious constitutional and privacy concerns, and it has not demonstrated sufficient effectiveness to continue in operation on a permanent basis," Medine said.

The board's findings were not unanimous, with two members, Rachel Brand and Elisebeth Collins Cook, endorsing the program.

"In today's world of never-ending and varied threats, I believe a tool such as section 215 that allows investigators to triage and focus on those who are more likely to be doing harm to or in the United States, or allows investigators to dismiss potential homeland connections to ongoing terror plots, is valuable," Cook said. "This allows us to connect the dots and paint a fuller picture of our adversaries."

Brand added that it is too soon to adequately gauge the success of the program – and highlighted the difficulty in doing so.

"There is no easy way to calculate the value of this program; there is no clear test," Brand said. "But the test cannot be whether it has already been a key factor in thwarting a previously unknown terrorist attack. Assessing the benefit of a preventive program like this one requires a longer-term view."

Brand also suggested that the program is not a threat to privacy because the records do not contain personally identifiable information, but rather series of numbers – an argument other supporters of the surveillance activities have made, including officials within the intelligence community.

Privacy advocates reject that premise.

"There may be no names literally within the database, but it's incredibly easy to correlate a phone number with a name," said Rachel Levinson-Waldman, counsel to the liberty and national security program at New York University's Brennan Center. "Content has been one of the biggest red herrings, the idea of 'no content itself' in the databases. But it's interesting how much we've all learned over the past year about metadata and how revealing it is – sometimes more so than content."