Privacy Oversight Board Agrees with EFF: Mass Surveillance Is Illegal and Must End
The Privacy and Civil Liberties Oversight Board (PCLOB) today issued a report strongly condemning the NSA’s mass telephone records surveillance program. PCLOB is an independent and bipartisan panel appointed by the president to advise the government on ensuring privacy and civil liberties. The report determined that the program, which the administration claims is authorized under Section 215 of the Patriot Act, is illegal under the terms of that same law and doesn’t actually keep us safe.
The board’s first recommendation says it all:
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. As a result, the Board recommends that the government end the program.
The report follows a set of similar recommendations and conclusions issued by the president’s separate review group in December regarding the 215 program.
“Now two independent government panels, a bipartisan coalition in Congress, a federal judge sitting in open court, and the majority of the American public agree—the government’s bulk collection of everyone’s private phone records must end,” EFF Staff Attorney Nate Cardozo said.
President Obama signaled last week that he believed the collection must stop. The president should rely on PCLOB’s findings and recommendations to guide his decisions as he ends the program.
The board also recognized the growing consensus that the program does nothing to keep America safe. Addressing the administration’s top-secret evidence of the program’s effectiveness, the board noted:
Based on the information provided to the Board, including classified briefings and documentation, we 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 counterterrorism investigation. 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.
We also welcome the board’s recognition that the program raises serious First Amendment concerns.
“This report is a strong endorsement of the legal theories in our case, First Unitarian Church of Los Angeles v. NSA," said EFF Legal Director Cindy Cohn. "Our case presents a challenge to the program on the grounds that the mass collection of Americans’ phone records violates the First Amendment right to free association of our 22 client-organizations, ranging from Calguns Foundation to Students for A Sensible Drug Policy to Greenpeace.”
The suit is currently pending in federal court in San Francisco.
“We welcome the board’s first report on government surveillance practices," said EFF Legislative Analyst Mark Jaycox. "It’s an encouraging step that PCLOB is serving as the vigorous intelligence watchdog Congress intended.”
The board’s other recommendations—increasing transparency and changing the FISA court in important ways—similarly reflect a nearly universal consensus that significant reform is needed. In the coming weeks, PCLOB is set to release a second report addressing the NSA's collection under Section 702 of the FISA Amendments Act. We hope that the board will apply similar principles and recognize the threat of mass surveillance to the privacy rights of all people, not just American citizens.