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January 23, 2014

Government Privacy Board: NSA Metadata Collection Is Unsupported By PATRIOT Act And Is Illegal

Apparently there's something called the Privacy and Civil Liberties Oversight Board. It was created on the recommendation of the 9/11 panel and doesn't seem to have done much until now.

The board voted 3-2 to back the conclusions that the bulk collection of phone records is illegal and should end. But all five board members called for a series of immediate changes, such as requiring court approval for searches, reducing how long the NSA holds the data and limiting the degrees of separation analysts can stray from their initial target from three to two. Obama backed similar reforms in his speech last Friday.

The board's recommendations go farther than the advisory group President Obama created last year to review the NSA's program. But that review group also called for major changes to the bulk data collection and concluded the program has not thwarted any terror attacks.

The NSA claims that bulk collection is authorized under Section 215 of the Patriot Act, which gives the government the power to collect business records that are "relevant" to a terrorism investigation. The Foreign Intelligence Surveillance Court has approved the NSA's argument, saying all U.S. phone calls are "relevant" because the agency needs the full database to map potential terrorist connections.

But the privacy board called the government's justification "circular" and "untenable."

The board's reasoning seems to track with an argument I made last summer that there are very specific categories of people that Section 215 of The PATRIOT Act allow data to be collected on. To expand that limited grant of power to an all encompassing grant to collect whatever the government wants on everyone effectively moots any concept that there is a difference between someone the government suspects is involved in a terrorist plot and everyone within in the United States.

The argument that the plans supporters make that the NSA needs to have all this data to quickly run an analysis or to spot people they didn't know they were looking for are almost certainly correct. But if they want that power, they need to go to Congress and get it. Then our elected representatives can have a debate and be held to account for their decision. To simply rely on secret judicial decisions to distort the plain meaning of the statute because it's more convenient for the executive branch is the exact opposite of how separation of powers and checks and balances are supposed to work.

This board doesn't seem to have enforcement powers but Section 215 of the PATRIOT Act is up for renewal next year. It's certainly going to be another piece of ammunition for those of us who believe in strict adherence to the law and stronger oversight of domestic intelligence programs.

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posted by DrewM. at 11:47 AM

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