A forceful new voice has joined the call to terminate the bulk telephone data collection program of the National Security Agency. The federal government's privacy watchdog agency rightly says the program is illegal, poses serious constitutional risks and performs no critical intelligence service.
The report by the Privacy and Civil Liberties Oversight Board was issued Thursday and met with strong approval by leading legislators who agree with its finding that the NSA program is not authorized by the terms of Section 215 of the Privacy Act, as the Obama administration claims. But President Obama, briefed on the report before it was issued, disagrees with its main recommendation and wants the bulk collection program to continue under new guidance.
Senate Judiciary Chairman Patrick Leahy, D-Vt., said, "The report reaffirms the conclusion of many that the Section 215 bulk phone records program has not been critical to our national security, is not worth the intrusion on Americans' privacy and should be shut down immediately."
Section 215 authorizes the government to collect business records relevant to an authorized investigation. But the NSA program compels all American telephone service providers to hand over every day a record of every call made by every telephone in the United States. The theory, explained by the Justice Department in a white paper issued last year, is that these records might one day become relevant to an investigation of terrorist links and so should be preserved.
This theory has been accepted by the Foreign Intelligence Surveillance Court (FISC), a secret body that hears arguments only from the government side, but has been challenged by at least one federal court ruling. The Supreme Court may eventually rule on the issue. But Congress does not have to wait. It can act now to end the bulk data collection.
The privacy board found the program "lacks a viable legal foundation, ... 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."
"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," said the report. "Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack."
The privacy board also shed new light on the history of the program. It was authorized in secret by President George W. Bush in 2001 following the 9/11 attacks, a time of grave uncertainty about the reach of terrorist networks, and reauthorized in secret by the intelligence court in 2006 and periodically thereafter. In more than a dozen years of secretly gathering the telephone records of every American, however, the NSA cannot point to a single terrorist case that was revealed or frustrated by the use of bulk telephone data.
It is time to end this massive and wasteful government intrusion into personal privacy.