- The Washington Times - Thursday, January 23, 2014

The federal government violated the Patriot Act by stockpiling Americans’ phone records and the phone companies are violating other federal laws by turning over the information, a federal privacy watchdog said Thursday, adding more hurdles for advocates who are trying to preserve the snooping program.

In a 3-2 ruling, the Privacy and Civil Liberties Oversight Board said the National Security Agency should scrap its collection program and instead ask telephone companies for information in limited specific cases. Going further, the board said the government should destroy all of the records it has.

The board is an advisory panel and its decision doesn’t carry the force of law, but it does give the NSA’s opponents substantial ammunition in arguing that the program must be dismantled.

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The government collects phone numbers, times and durations of every call made in the U.S. over a five-year period and can look through the data when it suspects a number is related to terrorism.

Defenders say the government isn’t violating Americans’ privacy as long as it isn’t fishing through the data, but the panel said just holding the information is a problem.

“The collection itself changes things,” said Patricia M. Wald, a former senior federal judge and one of the privacy board’s members. “It’s the fact that the government has this mass of information. Even if it doesn’t use it in any way detrimental to anybody, it changes the power structure.”

Previous reviews have debated the constitutionality of the NSA’s collection program, but the privacy board also looked at regular laws and concluded that the government’s actions go beyond what Congress has authorized.

In particular, the Patriot Act gives the government power to collect “relevant” records and the privacy panel’s majority said collecting all records goes well beyond that.

The panel also said that demanding the records from the phone companies is illegal because the Electronic Communications Privacy Act prohibits companies from turning over information except in limited circumstances. The Patriot Act is not one of those exceptions, the panel concluded.

President Obama last week called for big changes to the NSA program, including that the federal government no longer keep the phone records, but he said checking the data does have value and told the Justice Department and Congress to work out a plan to let the snooping continue under much stricter circumstances.

On Thursday, the White House said many of the review board’s recommendations were in line with the president’s proposals, but Mr. Obama doesn’t think the program violates the law.

“On the legality of it, we agree with the courts that have ruled on this and the judges of the [Foreign Intelligence Surveillance Act] court,” White House press secretary Jay Carney told reporters.

Several major telephone companies contacted by The Washington Times didn’t return messages seeking comment late Thursday.

Mr. Obama inherited the NSA snooping program from President George W. Bush. Although he believes it is legal and constitutional, he has said he is willing to make changes to restore Americans’ confidence.

The NSA phone-records program and a number of other intelligence-gathering tools came to light after details were leaked last year by former government contractor Edward Snowden.

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