A White House-appointed review board has recommended a wholesale restructuring of the National Security Agency’s phone data gathering program, just days after a federal judge said the program likely violated the Constitution.
The panel’s report is a surprising rebuke to the Obama administration, which has defended the NSA’s data-gathering as essential to preventing terrorism. By contrast, the panel sided with the NSA’s critics in Congress and the recent court rebuke, concluding that the metadata collection program was “not essential to preventing attacks.”
Vermont Democratic Sen. Patrick Leahy, who has sponsored legislation to ban the NSA’s collection of communications data, highlighted the report Wednesday on the Senate floor. “The message is very clear. The message to the NSA is now coming from every branch of government, from every corner of our nation, ‘NSA you have gone too far.’ [The report says] what many of us have been saying, that just because we can collect massive amounts of data doesn’t mean we should do so,” he said.
The board’s most sweeping recommendation is for the NSA to scrap its storage of phone data and instead allow private companies to retain the records, which could be accessed by the government only with the express permission of a magistrate judge from the secret Foreign Intelligence Surveillance Court. The report also recommends increased privacy protections for foreigners whose communications are intercepted by the NSA, a new requirement that surveillance of foreign leaders be subject to high-level approval, and the creation of a “public interest advocate” who would “represent the interests of privacy and civil liberties before the [secret foreign intelligence surveillance court].”
“I think it’s quite telling that the president’s own review group, formed of experts hand-picked by the executive branch, have nevertheless reinforced so many of the concerns raised by privacy and civil liberties advocates,” said Steve Vladeck, a law professor at American University’s Washington School of Law. “Indeed, the parallels between the 46 recommendations in the report and the Leahy-Sensenbrenner bill are pretty striking.”
The Electronic Frontier Foundation, a civil liberties advocacy group, said allowing private companies to hold onto the data still constituted “mass surveillance” of Americans because the NSA could still query the data.
“We’re disappointed that the recommendations suggest a path to continue untargeted spying,” Kurt Opsahl, an attorney with EFF, said in a statement. “Mass surveillance is still heinous, even if private company servers are holding the data instead of government data centers.“
Nevertheless, critics of the NSA now feel doubly vindicated by the report and the recent federal court ruling finding that the metadata collection program was likely unconstitutional. “It’s now up to Congress and the president to carefully consider the reports recommendations and rein in the NSA’s surveillance programs,” said Alex Abdo of the American Civil Liberties Union.
On Monday, federal Judge Richard Leon ruled that the data-gathering program, which he called the product of “almost-Orwellian” technology, likely violated constitutional protections against unreasonable search and seizure.
Leon’s ruling was made possible by leaks facilitated by former NSA contractor Edward Snowden, who is now in temporary asylum in Russia. Previous court challenges to NSA spying had been dismissed because plaintiffs couldn’t prove that they had been surveilled by the agency. When Snowden leaked a secret court order renewing an NSA request for the phone records of millions of Verizon customers that was published by The Guardian in June, it shredded the veil of official secrecy that prevented the program from having a public hearing in an open court.
The panel’s report came out ahead of schedule, and White House press secretary Jay Carney said Wednesday it was being released in order to correct “inaccurate and incomplete reports in the press about the report’s content.”
Obama administration officials have defended the phone data program, which collects the time, duration, and phone numbers of calls handled by American telecommunications companies, as necessary to protect Americans from terrorism. NSA Director Gen. Keith Alexander told Congress in October than ending the program would “result in this nation being attacked.”
The Review Group on Intelligence and Communications Technologies was composed of attorneys and former national security officials, including Michael Morell, a former deputy director of the CIA; Richard Clarke, a former counterterrorism official and Obama adviser; Cass Sunstein, a law professor and former Obama administration regulatory official; Peter Swire, a privacy expert and fellow at the Center for American Progress; and Geoffrey Stone, a constitutional law professor at the University of Chicago Law School.
Congress is currently considering two pieces of competing legislation that would either outlaw bulk collection of metadata under section 215 of the Patriot Act or explicitly authorize it. Despite intelligence officials’ insistence that altering the program would put the country in danger, Morell told reporters Wednesday that he didn’t believe that was the case.
“I do not believe, as a 33-year intelligence officer, that our recommendations will in any way undermine the capabilities of the US intelligence community to collect the information it needs to collect to keep the country safe,” Morell said.