In the months since Edward Snowden's unauthorized release of information about National Security Agency (NSA) programs involving collection of data on Americans at home and foreigners abroad, there has been a long overdue debate about the legality, as well as the need and desirability, of these programs.
The Privacy and Civil Liberties Oversight Board, an independent, bipartisan agency created by Congress and reporting to both the president and Congress, as well as to the public, just completed a seven-month extensive review of the most controversial of the programs, the Section 215 counterterrorism program of the Patriot Act.
Under Section 215, the NSA may collect records on calls made by virtually all Americans, accessible for three-tiered queries by NSA analysts based upon a determination that a particular number may be affiliated with terrorism.
The dialing and receiving numbers, the time and duration of calls made by Americans (though not the content), are amassed and retained for up to five years, even though the vast majority have no connection to terrorism.
The revelation of the Section 215 program has provoked intense debate about whether it is a relatively harmless invasion of Americans' privacy and civil rights necessary to protect their security. Heated debates have also arisen about the value and necessity of collecting this kind of bulk data on all Americans.
It was in this vortex that the oversight board conducted its inquiry, at the behest of 13 members of Congress and President Obama, to provide an independent look at the legality, value, and privacy and civil liberties implications of the program.
We examined the history and operation of the Section 215 program, its statutory foundations and the constitutional issues it raises. Our analysis of the program's statutory basis — the most detailed on record to date — led us to conclude that a series of fundamental disparities between the operation of the program and the language in Section 215 makes reconciliation of the two impossible under traditional rules of statutory construction.
That section of the Patriot Act allows the FBI to petition the Foreign Intelligence Surveillance Court to obtain items "relevant to an authorized investigation." The most crucial defect is the stunning leap in the government's interpretation of what is "relevant" to an investigation.
Traditionally, relevance in analogous situations such as grand jury and administrative subpoenas meant relevance to the subject matter of the investigation; now it has been interpreted to mean relevance to the sophisticated technological tools and algorithms that the agency has at its disposal.
The implications of such an interpretation are that the legality of mass-collection programs involving wide segments of the American population will be tied to the ever-evolving state of technology — not limited by the likelihood of producing evidence of terrorism. This is a prospect the majority of the board was not able to accept.
Beyond our legal analysis, we discussed the policy balancing that must go on between national security and privacy if we are to protect our traditional freedoms as well as our physical survival. To cut to the chase, we concluded that the Section 215 program, in its nearly decade of existence, has not contributed more than peripherally to ongoing terrorism investigations, let alone thwarted any terrorist plots.
Despite no indication of intentional misuse of telephone metadata, which could disclose rich troves of information about an individual's communications and relationships, we found that the mere collection and retention of that data for a significant period itself intruded on privacy, posed predictable risks of future misuse (remembering FBI surveillances of alleged communists, anti-war protesters and civil rights leaders), and in many cases, imposes a chilling effect on how Americans go about their lives.
A strong showing of utility of the program might overcome such harms, but that kind of justification was not produced, and the mere possibility that having this massive amount of information on tap in case it might be useful in some future scenario is not sufficient to validate the privacy intrusions it poses.
Therefore, we recommend the program be shut down, since the government has other equally useful tools, such as subpoenas and national security letters, to obtain calling records.
Two of our five members did accept that collection and retention of call metadata by the NSA could continue with additional privacy safeguards, based in part on its potential value during a future crisis. But while the program has been likened to a kind of "fire insurance," in the majority's view, this is an extraordinarily expensive premium to pay in privacy and civil liberties terms.
Yet what may be our most valuable contribution is a series of recommendations on national security transparency policies for the future, including publishing declassified Foreign Intelligence Surveillance Court opinions with significant implications for Americans' liberties, putting at the surveillance court's disposal a corps of outside advocates to present the other side of those cases that are important to Americans' privacy and liberties, and calling upon Congress, when adopting or interpreting laws that impose surveillance on Americans, to announce the "purpose and framework" of those laws (without revealing sensitive operational details).
Happily, all of these transparency recommendations, except for the congressional requirement, were unanimous. Indeed, one highly placed intelligence community leader told us that, in retrospect, he wished the government had just told the American people back at the beginning what it was doing in the Section 215 program, which would have saved so much trouble.
We are now having the overdue public debate that our unique form of representative democracy demands. We think this bodes well for our country's future.
David Medine is chairman of the Privacy and Civil Liberties Oversight Board, of which Patricia Wald, a retired federal appeals court judge, is a member.