WASHINGTON — An independent federal privacy watchdog has concluded that the National Security Agency’s program to collect bulk phone records has provided only “minimal” benefits in counterterrorism efforts, is illegal, and should be shut down.
The findings are laid out in a 238-report, scheduled for release by Thursday and obtained by the New York Times, that represent the first major public statement by the Privacy and Civil Liberties Oversight Board, which Congress made an independent agency in 2007 and only recently became fully operational.
The report is likely to inject a significant new voice into the debate over surveillance, underscoring that the issue was not settled by a high-profile speech President Obama gave last week.
Obama consulted with the board, along with a separate review group that last month delivered its own report about surveillance policies. But while he said in his speech that he was tightening access to the data and declared his intention to find a way to end government collection of the bulk records, he said the program’s capabilities should be preserved.
But in its report, the board lays out what may be the most detailed critique of the government’s once-secret legal theory behind the program: that a law known as Section 215 of the Patriot Act, which allows the FBI to obtain business records deemed “relevant” to an investigation, can be legitimately interpreted as authorizing the NSA to collect all calling records in the country.
The program “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 said. “As a result, the board recommends that the government end the program.”
While a majority of the five-member board embraced that conclusion, two members dissented. But the panel was united in 10 other recommendations, including deleting raw phone records after three years instead of five and tightening access to search results.
Some of those recommendations dovetailed with the steps Obama announced last week, including limiting analysts’ access to the call records of people no further than two links removed from a suspect, instead of three, and creating a panel of outside lawyers to serve as public advocates in major cases involving secret surveillance programs.