Why The New NSA Report Puts Obama In An Awkward Position


A new federal report determined that the National Security Agency’s dragnet telephone surveillance program is unlawful and should be shut down, posing a direct challenge to President Obama’s plan to keep the program alive.

The scathing 238-page report issued on Thursday conflicts with Obama’s plan to keep the NSA’s phone surveillance abilities and goes against more than a dozen federal surveillance court judge rulings. The conclusion from the Privacy and Civil Liberties Oversight Board — whose members the president appoints — goes beyond the changes Obama proposed in his highly anticipated speech last week. Despite consulting with the PCLOB and his own hand-picked review group before his Jan. 17 speech, Obama repeatedly emphasized the program’s necessity to protect national security while balancing privacy and civil liberty concerns.

While the administration contends that collecting and keeping bulk data is vital tool for thwarting potential attacks, the PCLOB says its usefulness is negligible. “We have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation,” the report says. “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 PCLOB also found the NSA failed to meet the legal standards for collection set out under Section 215 of the PATRIOT Act.. The 215 provision allows the government to collect Americans’ phone records to locate and intercept suspected terrorist communications. But that same provision of the PATRIOT Act also mandates any records requested by the government be relevant to a specific investigation, according to the report.


The NSA’s bulk telephone data collection “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 says. “Beyond such individual privacy intrusions, permitting the government to routinely collect the calling records of the entire nation fundamentally shifts the balance of power between the state and its citizens. … As a result, the board recommends that the government end the program.” The board also found that the NSA program violated the Electronic Communications Privacy Act, which protects the privacy of Americans’ electronic data, and makes it illegal to obtain phone records without a court order.

The White House disagrees with the board’s legal assessment and believes “the program is lawful,” said White House Press Secretary Jay Carney in response to the report.

The board also refuted the idea of mandating phone companies to hold onto the metadata longer than necessary or even having a third party hold the data. That conclusion contradicts Obama’s decision to take the data out of government hands, which is the linchpin of his strategy to keep the NSA program’s capabilities intact. The third party alternative was also supported by his NSA review panel.

Late last year, two federal district courts came to opposite decisions regarding the legality of the NSA program.

The PCLOB’s report is the latest of several that have found the NSA bulk record collection program to be marginally beneficial. Both the New America Foundation and Obama’s own NSA review panel concluded that there was little evidence that the program prevented attacks.