The federal government violated the Patriot Act by stockpiling Americans’ phone records and the phone companies are violating other federal laws by turning over the information, a federal privacy watchdog said Thursday, adding more hurdles for advocates who are trying to preserve the snooping program.
In a 3-2 ruling, the Privacy and Civil Liberties Oversight Board said the National Security Agency should scrap its collection program and instead ask telephone companies for information in limited specific cases. Going further, the board said the government should destroy all of the records it has.
The board is an advisory panel and its decision doesn’t carry the force of law, but it does give the NSA’s opponents substantial ammunition in arguing that the program must be dismantled.
The government collects phone numbers, times and durations of every call made in the U.S. over a five-year period and can look through the data when it suspects a number is related to terrorism.
Defenders say the government isn’t violating Americans’ privacy as long as it isn’t fishing through the data, but the panel said just holding the information is a problem.
“The collection itself changes things,” said Patricia M. Wald, a former senior federal judge and one of the privacy board’s members. “It’s the fact that the government has this mass of information. Even if it doesn’t use it in any way detrimental to anybody, it changes the power structure.”
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Previous reviews have debated the constitutionality of the NSA’s collection program, but the privacy board also looked at regular laws and concluded that the government’s actions go beyond what Congress has authorized.
In particular, the Patriot Act gives the government power to collect “relevant” records and the privacy panel’s majority said collecting all records goes well beyond that.
The panel also said that demanding the records from the phone companies is illegal because the Electronic Communications Privacy Act prohibits companies from turning over information except in limited circumstances. The Patriot Act is not one of those exceptions, the panel concluded.
President Obama last week called for big changes to the NSA program, including that the federal government no longer keep the phone records, but he said checking the data does have value and told the Justice Department and Congress to work out a plan to let the snooping continue under much stricter circumstances.
On Thursday, the White House said many of the review board’s recommendations were in line with the president’s proposals, but Mr. Obama doesn’t think the program violates the law.
“On the legality of it, we agree with the courts that have ruled on this and the judges of the [Foreign Intelligence Surveillance Act] court,” White House press secretary Jay Carney told reporters.
Several major telephone companies contacted by The Washington Times didn’t return messages seeking comment late Thursday.
Mr. Obama inherited the NSA snooping program from President George W. Bush. Although he believes it is legal and constitutional, he has said he is willing to make changes to restore Americans’ confidence.
The NSA phone-records program and a number of other intelligence-gathering tools came to light after details were leaked last year by former government contractor Edward Snowden.
Since then, a number of lawmakers on Capitol Hill have objected to the programs, saying they weren’t aware of the extent of government activities.
Leading Democrats and Republicans have proposed legislation to prohibit bulk-data collection by the government and say that without changes, the section of the Patriot Act that allows such NSA activities will expire next year.
“This report adds to the growing momentum behind genuine, legislative reform,” said Rep. F. James Sensenbrenner Jr., the Wisconsin Republican who was chief sponsor of the Patriot Act.
Among the program’s staunch defenders include the Democratic chairwoman of the Senate intelligence committee and the Republican chairman of the House intelligence committee, both of whom say the NSA is acting legally.
Those lawmakers also say the program is a valuable tool to sniff out terrorist plots.
The privacy board disagreed, saying it couldn’t find a single instance in which the NSA program uncovered a terrorist plot or “made a concrete difference in the outcome of a counterterrorism investigation.”
Congress created the panel in 2007 to oversee the government’s secret snooping programs and to recommend changes, but partisan squabbling has delayed its work for years.
Thursday’s report was the board’s first major action.
Of the panel’s five members, three were appointed by Democrats, and all of those voted to scrap the full NSA program.
The two GOP-appointed members dissented, saying they believed the program is legal.
But all five members agreed on the need for more transparency in government snooping, including releasing classified court rulings and letting companies reveal more information about the kinds of customers’ records the government is forcing them to submit.
The board’s ruling now joins with the author of the Patriot Act, a federal district court in Washington and President Obama’s internal review board in concluding that the NSA program violates the law and could even be unconstitutional.
On the other side are another federal district court, an independent secret intelligence court and lawmakers on the House and Senate intelligence committees, who argue that the snooping program is legal and that Congress has specifically given its approval.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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