Executive Branch Oversight Board Calls NSA Metadata Collection Illegal

The Privacy and Civil Liberties Oversight Board released its review of the NSA’s phone call metadata collection program, and called it illegal. The board said the program should end and that it has not contributed to a single counter-terrorism investigation.

Another independent review board investigating the National Security Agency’s collection of phone records metadata has come down hard on the program, calling it illegal, recommending the government end the program, and questioning its effectiveness in ferreting out terrorists.

The Privacy and Civil Liberties Oversight Board released a 238-page document today that examines the program as authorized by Section 215 of the PATRIOT Act. It concluded that the program “lacks a viable legal foundation under Section 215” and determined that the collection of phone records has not made a difference in the outcome of a single counterterrorism investigation.

“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 report said. “And we believe that in only one instance over the past seven years has the program arguably contributed to the identification of an unknown terrorism suspect.”

The board said the NSA’s program poses serious implications for the privacy and civil liberties of Americans caught up in the dragnet of surveillance activity that is by law supposed to be limited to foreign targets. The board’s report concludes that call data can reveal intimate details about an individual and when that data is digitally analyzed, that person’s privacy is imperiled.

“When the government collects all of a person’s telephone records, storing them for five years in a government database that is subject to high-speed digital searching and analysis, the privacy implications go far beyond what can be revealed by the metadata of a single telephone call,” the report said.

The board also concluded that the NSA’s surveillance activities also jeopardize the work of activists, journalists and others who need to protect the sensitivity of their communication. The program has a “chilling effect” on free speech, the report said, and forces those involved in sensitive areas to have less confidence in those relationships.

This is the second time a review board has ruled against the viability of the NSA’s metadata collection activity. In December, a presidentially appointed five-member panel made close to 50 recommendations to President Barack Obama to reform the intelligence community’s surveillance programs, in addition to a number of organizational NSA reforms.

“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 Americans’ private phone records must end,” said Nate Cardozo, a staff attorney with the Electronic Frontier Foundation in a statement.

The PCLOB is an independent committee that operates within the Executive Branch; it was established as a recommendation coming out of the 9/11 Commission Act of 2007 and includes four part-time members and a full-time chairman. The board is appointed by the president and confirmed by the Senate and has two missions: protect the U.S. from terrorism, balancing that protection with the maintenance of privacy and civil liberties; and ensure that privacy is considered when new laws are developed that are related to terrorism.

Today’s report comes less than a week after President Obama announced limited reforms to the metadata collection program, reforms that allow the program to continue.

Obama ordered immediate changes that include pursuing calls two steps removed from a terror suspect rather than three steps, as is the current procedure. Also, he ordered Attorney General Eric Holder to work with the secret Foreign Intelligence Surveillance Court (FISC) so that during this transition period, the database storing phone call metadata can be queried only after a judicial finding or in an emergency.

He also called for increased oversight of the program, annual reviews on the declassification of Foreign Intelligence Surveillance Court opinions with privacy implications, and for the establishment of a panel of outside privacy experts to render opinions on cases before FISC hears them.

“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,” said EFF Staff Attorney Mark Rumold.

Suggested articles


  • plz on

    The program is not even fully online/operational yet. They haven't made it far without catastrophic failure... As the saying goes, "You can't judge a book by its cover," you cannot judge America's keeper before it speaks for itself.
  • Joe C on

    I think the point is that it's morally wrong to collect the data in the first place (for later mining). It's one thing to pursue records already in existence from various diverse sources with appropriate warrants. It's quite another to collect everything (about someone) in anticipation that they might commit a crime. How would you like someone to collect ALL your garbage throughout your lifetime and keep it somewhere "just in case" you were ever suspected of a crime?
  • Brian Too on

    This report is a step in the right direction, and yet it still falls short: 1). The meta-data program isn't merely illegal, it is unconstitutional. This places the program in a special class of illegality; 2). The Three Letter Agencies involved have persistently minimized their activities. Most laughably, by claiming that meta-data isn't data. Thus ignoring the inconvenient word "data" in "meta-data". Double plus ungood; 3). The matter of the utility of the program is irrelevant considering it's illegality. As though, should the program be found to have utility, we could paper over it's illegality. It is a triumph of a vanished moral core that the question of utility even arises; 4). Senior representatives of said Three Letter Agencies have lied to Congress. For any normal citizen this is a ticket directly to jail. The heads of the tobacco companies did this and it cost them billions. Sports stars did this and there were significant consequences. Lie as the head of the NSA? Mumble something about "mistakes were made, questions misunderstood, English isn't my first language, etc." and you get a guaranteed Get Out Of Jail Free card. Not. Even. Close.

Subscribe to our newsletter, Threatpost Today!

Get the latest breaking news delivered daily to your inbox.