WASHINGTON — The federal privacy board that sharply criticized the collection of the phone records of Americans by the National Security Agency has come to a starkly different conclusion about the agency’s exploitation of Internet connections in the United States to monitor foreigners communicating with one another abroad.
That program, according to the Privacy and Civil Liberties Oversight Board, is largely in compliance with both the Constitution and a surveillance law that Congress passed six years ago.
The board, which Congress made an independent agency in 2007 and became fully operational around the time that Edward J. Snowden began releasing a trove of NSA documents, concluded that the agency largely abided by the rules set out by Congress as it gathered the communications of foreigners, a process that necessarily swept in some e-mails and phone calls involving US citizens.
The report was issued just as Congress is considering changes in the laws governing NSA activities. But the legislation, which has passed the House and is under consideration by the Senate, deals largely with the call-records program, which both the board and President Obama said in January must be changed. That program involved the agency’s retention of billions of records for all phone calls made from or to the United States; under the proposed legislation, telecommunications companies would retain those records, and the NSA would have access under court orders.
The privacy board found that program illegal, and said it should be terminated. But the most recent report, adopted by the board Wednesday, deals with what the agency calls “702 collection,” a reference to Section 702 of the Federal Intelligence Surveillance Act, which was amended in 2008 after the New York Times revealed a program of warrantless wiretapping that the Bush administration started after the Sept. 11, 2001, attacks.
“The Section 702 program has enabled the government to acquire a greater range of foreign intelligence than it otherwise would have been able to obtain — and to do so quickly and effectively,” the report said. While it found little value in the bulk collection of Americans’ telephone data, the board said that the 702 program, aimed at foreigners, “has proven valuable in the government’s efforts to combat terrorism as well as in other areas of foreign intelligence.”
The program is also used to track nuclear proliferation and to monitor the calls and e-mails of foreign governments and their leaders.
The report concluded that “monitoring terrorist networks under Section 702 has enabled the government to learn how they operate, and to understand their priorities, strategies, and tactics.”
In a sign of the Obama administration’s relief about the report’s conclusion, it was immediately praised by James R. Clapper Jr., the director of national intelligence, who had refused to talk publicly about the 702 programs before the Snowden disclosures. Clapper cited a section of the report that said the board was “impressed with the rigor of the government’s efforts to ensure that it acquires only those communications it is authorized to collect, and that it targets only those persons it is authorized to target.”
But the board’s conclusions were sharply criticized by privacy and civil liberties groups, which had embraced the board’s conclusions in January.
“This is a weak report that fails to fully grasp the civil liberties and human rights implications of permitting the government sweeping access to the communications of innocent people,” Jameel Jaffer, the deputy legal director of the American Civil Liberties Union, said in a statement.
Kevin Bankston, the policy director of the New America Foundation’s Open Technology Institute, was similarly critical. “If the board’s last report on the bulk collection of phone records was a bombshell, this one is a dud.”
He said the surveillance of foreign communications, which the NSA gains access to through court orders that enable it to tap into the Internet “backbone” that carries both phone calls and e-mail messages, is “in many ways much more worrisome than the bulk collection program.”