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Privacy report finds NSA spying illegal

The board is the third official government entity in recent months to examine the NSA's metadata program and question its utility in fighting terrorism.
Apple Store in Grand Central Station, New York, NY.
Apple Store in Grand Central Station, New York, NY.

The National Security Agency's telephone metadata program is illegal, a majority of the Privacy and Civil Liberties Oversight Board has concluded. 

"The Section 215 bulk telephone records program lacks a viable legal foundation under Section 215, implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value," the report states. "As a result, the Board recommends that the government end the program."

The board presented its conclusions Thursday afternoon. Three members of the five person board agreed that the government should end the program, saying it was not just ineffective but illegal. The other two board members dissented from that conclusion.

The board is the third official government entity in recent months to examine the NSA's metadata program and question its utility in fighting terrorism. In December, a federal judge found that the metadata program was likely unconstitutional and wrote that he had "serious doubts about the efficacy of the metadata collection program." Shortly thereafter, a White House appointed surveillance policy review board found that the program was "not essential" to preventing attacks. Top intelligence officials have argued otherwise

Yet the board's conclusion about the usefulness of the program was unequivocal. "[W]e 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 terrorist investigation," the report states. "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."

The two main benefits of the program, according to the board's report was in providing the authorities with fresh contacts to an individual already under investigation, and by confirming that a particular terrorist plot had no connection to the United States. Neither of those were sufficient to justify the program, the report stated, because the former "largely duplicates the FBI's own information gathering efforts" and the latter raised the question of whether "the American public should accept the government’s routine collection of all of its telephone records because it helps in cases where there is no threat to the United States."

Although the report found the metadata program's benefits to be negligible, it concludes that the program's threat to privacy is very real. The report states that a "compelling danger" posed by the program is that "personal information collected by the government will be misused to harass, blackmail, or intimidate, or to single out for scrutiny particular individuals or groups." (The report states that the board saw no evidence "that anything of the sort is occurring at the NSA"). The report also states that "bulk collection of telephone records can be expected to have a chilling effect on the free exercise of speech and association because individuals and groups engaged in sensitive or controversial work have less reason to trust in the confidentiality of their relationships[.]"

President Barack Obama announced a series of changes to surveillance policy last week, but none of them go as far as privacy advocates have been demanding. Legislators in Congress are currently battling over whether to explicitly authorize the program or end it entirely. Even so, Congress may not have the final say.

Since the scope of the metadata program was first revealed through information leaked by former NSA contractor Edward Snowden last June, federal courts have begun weighing in on the constitutionality of the program. If Congress does not alter the law, challenges to the NSA's surveillance policies could reach the Supreme Court. 

Early in 2013, the high court dismissed a challenge to a Bush-era warrantless surveillance law arguing that the plaintiffs couldn't prove the government was spying on them. Snowden's revelations about the scope of the NSA's metadata program have made it impossible for the courts to avoid ruling on the issue--which means that the only ways the Supreme Court would be able to avoid weighing in is if Congress has already ended the program, or if it allows the Section 215 authorization to expire as scheduled next year. 

California Democratic Rep. Adam Schiff, the ranking member on the House intelligence committee, said in a statement that the report "spells the final end of the government's bulk collection of telephone metadata." 

"Congress will not re-authorize bulk collection of this data when it expires next year, but Congress should not wait for the program to expire on its own," Schiff said in his statement. "Rather we should work to restructure the program now so that bulk collection is no longer necessary and our security needs can be met by a more traditional approach of going to the telephone companies when we have reason to believe a number is connected with a plot."
Privacy advocates would prefer Congress change the law rather than simply allow the program to expire, since proposed changes would also address other civil liberties concerns they have with national security law as it currently exists. 
Snowden supporters have argued that the report's conclusions vindicate his decision to leak the information in the first place. Snowden is currently in temporary asylum in Russia, he has been charged by the U.S. government with espionage. 
Speaking to msnbc's Ari Melber Thursday afternoon, Attorney General Eric Holder said he didn't consider Snowden to be a whistleblower. "I prefer the term 'defendant,'" Holder said. "That's the most apt title."