By Cliff Montgomery – Jan. 23rd, 2014
The statute cited by the National Security Agency (NSA) as justification for its bulk collection of telephone records “permits only the FBI to obtain items for use in its investigations – it does not authorize the NSA to collect anything,” the Obama Administration’s own civil liberties board has declared in a damning study released today.
The Privacy and Civil Liberties Oversight Board also pointed out that such a massive collection of information “cannot be regarded as ‘relevant’ to any FBI investigation…without redefining the word ‘relevant’ in a manner that is circular, unlimited in scope, and out of step with the case law from analogous legal contexts involving the production of records.”
Below, The American Spark quotes major sections of the report’s fascinating Executive Summary:
“The statute creating the Privacy and Civil Liberties Oversight Board (‘PCLOB’ or ‘Board’) directs the Board to analyze and review actions taken by the executive branch to protect the nation from terrorism, ‘ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties.’
“In pursuit of this mission, the PCLOB has conducted an in-depth analysis of the bulk telephone records program operated by the National Security Agency (‘NSA’) under Section 215 of the USA PATRIOT Act (‘Patriot Act’).
“The Board’s examination has also included a review of the operation of the Foreign Intelligence Surveillance Court (‘FISC’ or ‘FISA court’).
“This Executive Summary outlines the Board’s conclusions and recommendations.
I. Overview of the Report
A. Background: Description and History of the Section 215 Program
“The NSA’s telephone records program is operated under an order issued by the FISA court pursuant to Section 215 of the ‘Patriot Act’, an order that is renewed approximately every ninety days.
“The program is intended to enable the government to identify communications among known and unknown terrorism suspects, particularly those located inside the United States.
“When the NSA identifies communications that may be associated with terrorism, it issues intelligence reports to other federal agencies, such as the FBI, that work to prevent terrorist attacks.
“The FISC order authorizes the NSA to collect nearly all call detail records generated by certain telephone companies in the United States, and specifies detailed rules for the use and retention of these records.
“Call detail records typically include much of the information that appears on a customer’s telephone bill: the date and time of a call, its duration, and the participating telephone numbers. Such information is commonly referred to as a type of ‘meta-data.’
“The records collected by the NSA under this program do not, however, include the content of any telephone conversation.” […]
“On June 5, 2013, the British newspaper The Guardian published an article based on unauthorized disclosures of classified documents by Edward Snowden, a contractor for the NSA, which revealed the telephone records program to the public.
“On August 29, 2013, FISC Judge Claire Eagan issued an opinion explaining the court’s rationale for approving the Section 215 telephone records program.
“Although prior authorizations of the program had been accompanied by detailed orders outlining applicable rules and minimization procedures, this was the first judicial opinion explaining the FISA court’s legal reasoning in authorizing the bulk records collection. The Section 215 program was re-authorized most recently by the FISC on January 3, 2014. […]
B. Legal Analysis: Statutory and Constitutional Issues
“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. Yet the operation of the NSA’s bulk telephone records program bears almost no resemblance to that description.
“While the Board believes that this program has been conducted in good faith to vigorously pursue the government’s counter-terrorism mission and appreciates the government’s efforts to bring the program under the oversight of the FISA court, the Board concludes that Section 215 does not provide an adequate legal basis to support the program.
“There are four grounds upon which we find that the telephone records program fails to comply with Section 215.
“First, the telephone records acquired under the program have no connection to any specific FBI investigation at the time of their collection.
“Second, because the records are collected in bulk – potentially encompassing all telephone calling records across the nation – they cannot be regarded as ‘relevant’ to any FBI investigation as required by the statute without redefining the word ‘relevant’ in a manner that is circular, unlimited in scope, and out of step with the case law from analogous legal contexts involving the production of records.
“Third, the program operates by putting telephone companies under an obligation to furnish new calling records on a daily basis as they are generated (instead of turning over records already in their possession) – an approach lacking foundation in the statute and one that is inconsistent with FISA as a whole.
“Fourth, the statute permits only the FBI to obtain items for use in its investigations – it does not authorize the NSA to collect anything.
“In addition, we conclude that the program violates the Electronic Communications Privacy Act. That statute prohibits telephone companies from sharing customer records with the government except in response to specific enumerated circumstances, which do not include Section 215 orders.
“Finally, we do not agree that the program can be considered statutorily authorized because Congress twice delayed the expiration of Section 215 during the operation of the program without amending the statute. The ‘re-enactment doctrine,’ under which Congress is presumed to have adopted settled administrative or judicial interpretations of a statute, does not trump the plain meaning of a law, and cannot save an administrative or judicial interpretation that contradicts the statute itself.
“Moreover, the circumstances presented here differ in pivotal ways from any in which the re-enactment doctrine has ever been applied, and applying the doctrine would undermine the public’s ability to know what the law is and hold their elected representatives accountable for their legislative choices.
“The NSA’s telephone records program also raises concerns under both the First and Fourth Amendments to the United States Constitution.
“We explore these concerns and explain that while government officials are entitled to rely on existing Supreme Court doctrine in formulating policy, the existing doctrine does not fully answer whether the Section 215 telephone records program is constitutionally sound. In particular, the scope and duration of the program are beyond anything ever before confronted by the courts, and as a result of technological developments, the government possesses capabilities to collect, store, and analyze data not available when existing Supreme Court doctrine was developed.
“Without seeking to predict the direction of changes in Supreme Court doctrine, the Board urges as a policy matter that the government consider how to preserve underlying constitutional guarantees in the face of modern communications technology and surveillance capabilities.”
