Watchdog Report Says N.S.A. Program Is Illegal and Should End
By CHARLIE SAVAGE
New York Times
JAN. 23, 2014
WASHINGTON — An independent federal privacy watchdog has concluded that the National Security Agency’s program to collect bulk phone call records has provided only “minimal” benefits in counterterrorism efforts, is illegal and should be shut down.
The findings are laid out in a 238-page report, scheduled for release by Thursday and obtained by The New York Times, that represent the first major public statement by the Privacy and Civil Liberties Oversight Board, which Congress made an independent agency in 2007 and only recently became fully operational.
The report is likely to inject a significant new voice into the debate over surveillance, underscoring that the issue was not settled by a high-profile speech President Obama gave last week. Mr. Obama consulted with the board, along with a separate review group that last month delivered its own report about surveillance policies. But while he said in his speech that he was tightening access to the data and declared his intention to find a way to end government collection of the bulk records, he said the program’s capabilities should be preserved.
The Obama administration has portrayed the bulk collection program as useful and lawful while at the same time acknowledging concerns about privacy and potential abuse. But in its report, the board lays out what may be the most detailed critique of the government’s once-secret legal theory behind the program: that a law known as Section 215 of the Patriot Act, which allows the F.B.I. to obtain business records deemed “relevant” to an investigation, can be legitimately interpreted as authorizing the N.S.A. to collect all calling records in the country.
The 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 said. “As a result, the board recommends that the government end the program...”
(Diarist's note: I'll return with at least a couple of lengthy updates and personal copy on this story in a bit. But, I wanted to get this out there as quickly as possible.)
In the meantime, I'd strongly suggest a read of the following two posts from Marcy Wheeler (just a couple of verifications why Newsweek recently referred to her as "The Woman Who Knows The NSA's Secrets"), from this past Friday and Tuesday, respectively: "Obama’s Speech, Annotated Version," "Once Again, Pew Misunderstands the Dragnet."
Additionally, I didn't want to signoff for a few minutes without noting that this story (blockquoted above) is buried on page A14 in Thursday's edition. Meanwhile, the NYT ran a piece of pure propaganda/fiction on Wednesday on page A9--entirely based upon bogus innuendo with no supporting facts to back it up; an "article" which was essentially not even fit for print, let alone publication in the The Times--entitled: "Snowden Denies Suggestions That He Was A Spy For Russia."
To be continued in a few...
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As usual on this topic, the Guardian was way ahead of everyone else. From a week ago...
NSA surveillance: privacy board denies being sidelined by Obama
President to deliver key speech on surveillance before PCLOB watchdog
officially hands down its findings
Spencer Ackerman (in Washington)
theguardian.com
Thursday 16 January 2014 20.23 EST
The head of the US government’s independent privacy watchdog has denied that his organization has been neutered by Barack Obama’s decision to deliver a major speech on surveillance before it completes its examination into the National Security Agency.
Obama is due to announce his proposed reforms on surveillance activities on Friday, before the Privacy and Civil Liberties Oversight Board has had a chance to deliver its final report.
But the chairman of the task force, David Medine, told the Guardian on Thursday that he did not feel undercut. "We felt we accomplished our goal of having input to the president’s decision-making process,” he said.
Medine and his four colleagues on the board have given the White House drafts of their recommendations, which will be published on 23 January, for reforms to the bulk collection of domestic phone records and the composition of the Fisa court. They met with Obama and the vice-president, Joe Biden, last week ahead of Obama’s widely anticipated speech on Friday about the future course of the NSA’s sweeping surveillance powers.
It has struck some observers as awkward that Obama is delivering his speech before the so-called PCLOB delivers its own assessment of US surveillance and its implications for civil liberties, a subject central to its existence.
Additionally the PCLOB has been overshadowed by a surveillance review panel Obama handpicked in August, whose recommendations have captivated a Washington debate the PCLOB has yet to influence – and one of those recommendations was to replace the PCLOB with a more institutionally powerful organization.
“It appears as if the president is thumbing his nose at the PCLOB’s recommendations,” said Angela Canterbury of the Project on Government Oversight, a watchdog group...
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Accompanying tonight’s breaking news at the NYT, there’s a noteworthy op-ed by author, Pulitzer Prize-winner, Yale University professor and former Times’ Supreme Court reporter Linda Greenhouse: “We’ve Got Your Number.”
We’ve Got Your Number
Linda Greenhouse
New York Times (Op-Ed)
January 23rd, 2014
A generation ago, the Supreme Court was faced with deciding whether the police needed a warrant before installing a newfangled device at a telephone company switching office that could record the numbers dialed from a particular telephone. The answer the court gave was no.
After all, Justice Harry A. Blackmun explained in his majority opinion, people know that the telephone company keeps track of the numbers they call -- they see their long-distance calls listed on their monthly bill. “It is too much to believe,” he wrote, “that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.” The absence of a “legitimate expectation of privacy” in information voluntarily conveyed to the phone company, the court concluded, meant that the use of the device, a “pen register,” was not even a search within the meaning of the Fourth Amendment’s prohibition of unreasonable searches. Hence, no warrant was required.
This case, Smith v. Maryland, was no big deal in its day. (And the defendant in the garden-variety case that led to the decision was no criminal mastermind -- he was making harassing calls from his home phone.) The majority opinion was only 11 pages long. There were three dissenting votes, but the dissenting opinions lacked passion. After Justice Blackmun circulated his final draft in June 1979, Chief Justice Warren E. Burger responded by agreeing that “the urge for privacy does not rise to the level of a constitutionally protected right.” The chief justice added that “Congress could require a warrant but the Constitution does not…”
…
…Thirty-five years later, telephones and their users’ privacy concerns are obviously no joking matter. They are the question of the hour. Constitutional challenges to the National Security Agency’s bulk telephone data collection produced opposing Federal District Court rulings last month, and the issue appears destined for the Supreme Court.
Ms. Greenhouse continues on in her introduction to note that, in the past week, the SCOTUS’ justices have “…
accepted two cases with less obvious national security implications but much greater relevance to many Americans: whether the police need a warrant in order to search the contents of a cellphone of a person they have just arrested. These cases,
United States v. Wurie and
Riley v. California, will probably be argued in April and decided in June."
All the cases will be dissected in minute detail in the coming months, but that’s not my goal here... …what I find most intriguing at the moment is watching how judges respond to the challenge of figuring out how old precedents fit with new realities.
The fit is awkward at best…
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Kossack Meteor Blades has published a post on this breaking story (around the same time as yours truly): "Government oversight board issues report saying NSA bulk phone calls program is illegal."
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