Obama must finally end NSA phone record collection, says privacy board

The US government’s privacy board is calling out President Barack Obama for continuing to collect Americans’ phone data in bulk, a year after it urged an end to the controversial National Security Agency program.

The Obama administration could cease the mass acquisition of US phone records “at any time”, the Privacy and Civil Liberties Oversight Board (PCLOB) said in an assessment it issued on Thursday.

The PCLOB’s assessment comes amid uncertainty over the fate of legislation to cease that collection. An effort intended to stop it, known as the USA Freedom Act, failed in the Senate in November. While the administration said after its defeat that Obama would push for a new bill, it has yet to do so in the new Congress, and the president has thus far pledged in his State of the Union address only to update the public on how the bulk-surveillance program now works in practice.

David Medine, the PCLOB chairman, said on Thursday that the administration was acting in “good faith” and had agreed in principle to most of the 22 reform recommendations the board had offered in its two 2014 reports into bulk NSA surveillance. The board’s report found that the administration had in many cases not implemented recommendations it agreed to in principle, such as assessing whether the NSA is successfully filtering out purely domestic communications when it siphons data directly from the “backbone” of the internet.

Medine reiterated his call for Obama to cease the domestic bulk phone records collection unilaterally.

“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 told the Guardian.

“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,” said James Dempsey, another member of the PCLOB.

As it currently stands, the legislative calendar will force a decision. On 1 June, a portion of the Patriot Act that the NSA cites to justify the bulk domestic phone records collection will expire. Known as Section 215, the provision also governs investigative authorities the FBI cites as critical for acquiring business and other records in counter-terrorism cases.

Medine called the expiration a “real-world deadline” for either executive or legislative action, and hesitated to back repeal of the entirety of Section 215.

“It would be in my view a net positive if the telephony metadata aspect” were repealed, Medine said, but “215 is broader. I don’t think it’s necessarily a net gain if the whole of 215 ended.”

Several civil libertarian legislators have predicted that congressional inertia and antipathy to bulk surveillance will doom re-authorization of the provision should a bill similar to the USA Freedom Act fail to pass. But the rise of the Islamic State (Isis), the terrorist attack in Paris and a Republican-led Congress increasingly willing to use those phenomena as a cudgel against privacy advocates have complicated congressional attitudes to mass surveillance.

The PCLOB, however, found in a January 2014 report that the bulk phone records collection had not stopped terrorist attacks and had “limited value” in combatting terrorism more broadly. Despite the NSA effort’s repeated blessing by a secret surveillance court, the PCLOB considered the program illegal.

Both Medine and Dempsey said they believed the administration still backed legislative reform of its surveillance authorities. Dempsey expected Congress to pass “down-to-the-wire action”, such as a temporary extension of Section 215, rather than let it expire.

Last January, Obama unilaterally imposed a series of changes to the NSA’s handling of its bulk phone records, stopping short of shutting down the program entirely. While he did not limit the ongoing mass collection, NSA officials now need to demonstrate “reasonable articulable suspicion” to the secret court ahead of searching through phone records databases for connections to terrorism, and can now only examine phone accounts with two degrees of separation from a suspicious phone number.

While the PCLOB’s report notes those changes, it also observes that Obama continues to permit the NSA to store its bulk phone data for five years, rather than purging it after two years, as the board recommended.

Nor does the secret court hear arguments from anyone besides government lawyers before issuing surveillance orders, Thursday’s report acknowledged. The USA Freedom Act permitted special advocates to argue before the court in limited circumstances.

The PCLOB disappointed civil libertarians in the summer by giving its blessing to a controversial constellation of efforts to collect Americans’ international communications and a wide swath of foreign communications information. But it noted on Thursday that the intelligence agencies have yet to declassify the first order issued by the surveillance court assessing the legality and constitutionality of the effort.

“Intelligence Community representatives have stated to us that they intend to implement this recommendation, but their efforts to comply are constrained by the limited time and resources available to carry out declassification reviews,” the board said.

Additionally, the PCLOB signaled that the intelligence agencies plan an “imminent” release of internal rules for the FBI, CIA and NSA governing when they can collect, use and disseminate information from the international communications dragnets. The NSA, however, has only committed to “studying” how many Americans’ communications are caught in those nets.

Its recommendation for the intelligence agencies to create a “comprehensive methodology for assessing the efficacy and relative value of counter-terrorism programs” is “not implemented,” the PCLOB said Thursday.