NSA Spying Isn't Just an Illegal Invasion of Privacy—It Doesn't Stop Terror Attacks

New report from independent federal watchdog says spies need to stop collecting Americans' records.

(Photo: Kai Pfaffenbach/Reuters)

Jan 28, 2014· 3 MIN READ
Sarah Parvini is an award-winning multimedia journalist based in Los Angeles.

The National Security Agency surveillance program that keeps tabs on almost every phone call in the U.S. is illegal and should be shut down—especially considering no terrorist threats have been discovered through the massive data collection, according to a new report released by a federal privacy watchdog.

The five-member Privacy and Civil Liberties Oversight Board—an independent agency created by Congress in the wake of the 9/11 terrorist attacks—came out with its scathing review of the NSA's “bulk telephony metadata collection program” (the fancy name for collecting your phone records) on Thursday, claiming the program has essentially been useless in the battle against terrorism.

"We have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation," writes the board, which reviews actions taken by the government to protect the country from terrorism.

The report credits the NSA with thwarting just one potential supporter of terrorists: San Diego cab driver Basaaly Moalin, a Somali immigrant who was convicted of sending $8,500 to the Islamist group al-Shabaab last year.

The board notes that while there was "critical value" in stopping the funds, Moalin's case was the only instance in seven years of NSA surveillance in which the program helped tip off authorities. Even then, the board suggests, the FBI could have found Moalin without the NSA's help. The NSA also could have received the same information without invasive bulk data collection, according to the report.

The findings, laid out in a 238-page document, will inevitably spark greater debate in an arena already rife with friction over the merits and legality of the program. Federal judges are currently sparring over the massive phone record collections and debating whether such surveillance is necessary or "Orwellian."

The report hinges on Section 215 of the Patriot Act, which allows federal investigators to request records relevant to an authorized national security investigation, but not the bulk collection of information that "cannot be regarded as 'relevant.' "

The panel argued the NSA's tracking program "bears almost no resemblance" to the descriptions listed in the law and concluded that it “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 program has “contributed only minimal value in combating terrorism beyond what the government already achieves through these and other alternative means,” according to the report.

Yet despite its damning review, the panel was not unanimous on the issue of ending this type of data collection. Two members—Rachel L. Brand and Elisebeth Collins Cook, who served in the Justice Department during George W. Bush’s administration—argued the program should continue, if modified, to address greater privacy protections.

Brand writes:

"...[T]he government does not collect the content of any communication under this program. It does not collect any personally identifying information associated with the calls. And it does not collect cell site information that could closely pinpoint the location from which a cell phone call was made. The program is literally a system of numbers with no names attached to any of them. As such, it does not sweep in the most sensitive and revealing information about telephone communications. This seems to have gotten lost in the public debate."

Supporters of the NSA program agree with Brand and Cook, arguing that the board should not participate in “unwarranted legal analysis.”

“As those of us with law enforcement experience know, successful investigations use all available tools—there often is ‘no silver bullet’ that alone thwarts a plot,” Rep. Mike Rogers, R-Mich., chairman of the House Intelligence Committee, told The Washington Post.

The power of the Privacy and Civil Liberties Oversight Board lies in its recommendations—the agency holds no legal power and can only advise the government on the best ways to put policies and regulations into practice without trampling on civil liberties and privacy.

“Cessation of the program would eliminate the privacy and civil liberties concerns associated with bulk collection without unduly hampering the government’s efforts,” the board writes, “while ensuring that any governmental requests for telephone calling records are tailored to the needs of specific investigations.”

The board's landmark statements coincide with President Barack Obama's recent speech calling for modest changes to the NSA's call tracking program, as well as a separate set of harsh recommendations from a White House–appointed review panel in December.

While the new report staunchly opposes third-party involvement with the database, the panels agreed that the government would still have the capability to obtain phone records through traditional court orders.

The panel’s recommendation to end the program takes things a step further than the president-appointed review panel, which suggested NSA data be taken out of government hands while still preserving the agency's power.

The government is reviewing whether telephone companies should hold the NSA data or if a third-party agency should be created to collect the information.

Though the board’s analysis can only urge the government to make changes, its report provides the information required for the NSA to explore its options while setting the tone for debates on NSA reform.