Federal Board Finds NSA Program Illegal and Unjustified

Yesterday, as Charlie Savage of the New York Times reported, the Privacy and Civil Liberties Oversight Board (PCLOB) created by Congress issued a comprehensive report on the National Security Administration's collection of telephone data. This damning report makes it clear that President Obama's proposed reforms to the program don't go far enough. The PCLOB report raises serious questions about the legality of the program, and perhaps even more importantly, finds scant evidence that it has been effective at achieving its anti-terror goals.

To start with question of the legality of the NSA program, the report raises both statutory and constitutional concerns. The report finds that the program exceeded the authority granted by Congress under Section 215 of the Patriot Act. According to the report, "Section 215 is designed to enable the FBI to acquire records that a business has in its possession, as part of an FBI investigation, when those records are relevant to the investigation. The operation of the NSA’s bulk telephone records program bears almost no resemblance to that description." The statute authorizes only the collection of records that are relevant to an ongoing anti-terrorism investigation, but by definition the collection of large amounts of data before any suspect has even been identified in the hope of finding one does not meet this requirement. The government's response is that the data collection is authorized because it is relevant to all anti-terror investigations. This response, as the report notes, "is in deep tension with the statutory requirement that items obtained through a Section 215 order be sought for 'an investigation,' not for the purpose of enhancing the government’s counterterrorism capabilities generally."

There is an additional statutory problem presented by the NSA's searches. There is a serious argument that the mass data collection violates the The Electronic Communications Privacy Act (ECPA), which limits the circumstances under which telecommunications companies can release the information of their customers. While there are various means that the statute explicitly creates that allows the government to obtain such information—including a search warrant or a subpoena—a Section 215 order is not one of the ways. The FISA court held in 2008 that its orders granting this authority to the NSA didn't violate the ECPA, but the report disagrees with its conclusion.

Even if one assumes that the Patriot Act authorizes the NSA program, it still has to conform to the requirements of the Constitution. Although it spends much less time on them than it does on the issues of statutory law, the report considers two potential constitutional arguments against the legality of the program, one based on the First Amendment and one on the Fourth. The report concedes that based on existing precedents, the government's case for the constitutionality of the program is plausible. But as the report explains, the Supreme Court's holding that in most cases giving information to a third party eliminates an individual's Fourth Amendment privacy interests is becoming increasingly difficult to square with technological changes, and a federal judge recently held that the NSA program is so different in scope than the kinds of searches previously upheld by the Court that the key precedents are no longer controlling. Particularly since the program implicates First Amendment rights of freedom of speech and association as well, the report urges reconsideration of the relevant precedents, although with the question currently being litigated it does not draw firm conclusions.

Two members of the panel dissented from the finding that the program was not authorized by statute, and reasonable people can certainly disagree on this question. As the report argues forcefully, however, even if the program is considered to be consistent with the Patriot Act and the Bill of Rights, its burdens on privacy and the freedom of speech and assembly remain relevant policy considerations. And it is here where the NSA program becomes particularly difficult to defend.

In a perverse way, programs that restrict civil liberties become self-justifying because of restrictions on civil liberties are simply assumed to increase security and order. For example, in their 2007 defense of Bush-era expansions of executive branch powers to combat terrorism, Terror in the Balance, the eminent legal scholars Eric Posner and Adrian Vermuele proceed under the (empirically undefended) assumption that there is a substantial policy space in which there is a direct tradeoff between civil liberties and national security. This assumption stacks the political deck against civil liberties, because most assertions of executive authority are assumed to increase national security by virtue of their burdens on freedom on the one hand, and on the other that the people most likely to have their rights violated are likely to be unpopular minorities. The tendency of public officials to exaggerate threats further throws the tradeoff out of balance.

But the NSA program illustrates that this assumed tradeoff is often unfounded. Even in theory, in a world of finite resources it's far from clear that collecting metadata is a better means of protecting national security than searches based on individualized suspicion. Analyses of metadata may reveal suspects and evidence that might otherwise go hidden, but they also consume valuable resources searching data generated by people with no connection to terrorism. Whether this tradeoff is beneficial is, at best, questionable. Generally, one doesn't add triple the size of the haystack before searching for the needle. Given the real burdens placed on fundamental rights, the burden of proof is on those asserting that the programs are effective enough to justify such burdens.

The report concludes, however, that such evidence is sorely lacking. The report concedes three theoretical advantages to preemptively collecting huge amounts of metadata: speed, historical depth, and breadth of potential contacts. That these programs have some value in theory, however, is insufficient to demonstrate that they are superior to other available methods or effective enough to justify their intrusions into the privacy of individuals. Ultimately, after considering a substantial number of cases where terrorist plots have been stopped, the report concludes that the NSA program does not come close to justifying its costs: Based on the information provided to the Board, 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." In the rare cases where the metadata has provided leads pertaining to known terrorists, it had simply duplicated the work already being done by other law enforcement agencies such as the FBI.

And while the benefits of the program are ephemeral and at best speculative, the burdens are very real. The report shows in detail that the knowledge that communications being monitored can have a chilling effect on the speech and associational rights of journalists, activists, and scholars with no connection to terrorism. The report refers to Justice Sotomayor's already influential concurrence in U.S. v. Jones, in which she correctly observes that "[a]wareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse."

As currently constructed, in other words, the NSA program offers few unique benefits while inflicting real costs on the privacy and free speech interests of people both inside and outside the United States. Whether the program is illegal is debatable, although the arguments against its legality are strong. But as policy, it's nearly impossible to defend. Even if the Roberts Court upholds the program, Congress and the White House should apply a higher standard that doesn't compromise privacy for little benefit.

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