Federal Civil Liberties Board To Issue Scathing Condemnation Of Bulk Metadata Program And The Bogus Defenses Of It

from the another-one dept

Thu, Jan 23rd 2014 3:28am — Mike Masnick

We noted a week ago that it seemed odd that President Obama was announcing his (mostly cosmetic) reforms for the intelligence community a week or so before the Privacy and Civil Liberties Oversight Board (PCLOB) had a chance to weigh in. As we noted, the PCLOB is the government organization that should be looking into this issue. The PCLOB had briefed the President a week or so earlier, and that may explain why he sought to get his speech out before their report came out: the report, to be released later today, clearly states that the NSA's bulk metadata collection program is illegal and should end.

In a strongly worded report to be issued Thursday, the Privacy and Civil Liberties Oversight Board (PCLOB) said that the statute upon which the program was based, Section 215 of the USA Patriot Act, “does not provide an adequate basis to support this program.”

The board’s conclusion goes further than President Obama, who said in a speech Friday that he thought the NSA’s database of records should be moved out of government hands but did not call for an outright halt to the program. The board had shared its conclusions with Obama in the days leading up to his speech.

It seems clear that President Obama clearly wanted to get his speech out of the way before this report came out. The PCLOB has found the same basic thing that the President's own task force (and Judge Leon) found: that the bulk data collection on pretty much everyone's phone call data had been almost entirely useless (while violating everyone's privacy). According to the Washington Post:

“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, a copy of which was obtained by The Washington Post. “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 full report, which sounds like it will be well worth reading, clearly appears to recognize that the NSA and the FISA Court reinterpreted the law in secret, in a manner that directly conflicts with the plain reading of the law -- exactly what Senators Ron Wyden and Mark Udall have been screaming about for years:

But the board found that it is impossible that all the records collected — billions daily — could be relevant to a single investigation “without redefining that word in a manner that is circular, unlimited in scope.” Moreover, instead of compelling phone companies to turn over records already in their possession, the program requires them to furnish newly generated call data on a daily basis. “This is an approach lacking foundation in the statute,” the report said.

“At its core, the approach boils down to the proposition that essentially all telephone records are relevant to essentially all international terrorism investigations,” the report said. This approach, it said, “at minimum, is in deep tension with the statutory requirement that items obtained through a Section 215 order be sought for ‘an investigation,’ not for the purpose of enhancing the government’s counterterrorism capabilities generally.”

Importantly, unlike the task force, the PCLOB calls bullshit on the oft-repeated claim that a program like the Section 215 program would have prevented 9/11. This has been debunked multiple times, but here is a government organization doing the debunking:

The board rejected the contention made by officials from Obama on down that the program was necessary to address a gap arising from a failure to detect an al Qaeda terrorist in the United States, Khalid al-Mihdhar, prior to the 2001 attacks. Mihdhar was in phone contact with a safehouse in Yemen, and though the NSA had intercepted the calls, it did not realize at the time that Mihdhar was calling from San Diego.

“The failure to identify Mihdhar’s presence in the United States stemmed primarily from a lack of information sharing among federal agencies, not of a lack of surveillance capabilities,” the report said, noting that in early 2000 the CIA knew Mihdhar had a visa enabling him to enter the United States but did not advise the FBI or watchlist him. “...This was a failure to connect the dots, not a failure to connect enough dots.”

Second, the report said, the government need not have collected the entire nation’s calling records to identify the San Diego number from which Mihdhar made his calls. It asserted that the government could have used existing legal authorities to request from U.S. phone companies the records of any calls made to or from the Yemen number. “Doing so could have identified the San Diego number on the other end of the calls,” though, it noted, the speed of the carriers’ responses likely would vary.

The report also apparently calls bullshit on the claim made by some, including Senator Dianne Feinstein, that the program was necessary in stopping the plot to bomb the NYC subway.

I'm sure we'll have more on this report, but it's yet another condemnation of the program which the President is trying to keep going, while pretending he's ending it.

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Filed Under: civil liberties, nsa, oversight, patriot act, pclob, section 215, surveillance

21 Comments

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Reader Comments

The First Word

“

insane ?
no...
psychopathic ?
possibly...

here's the thing, IF you analyze the actions of 'our' (sic) gummint leaders by superficial rationality and logic, it DOES NOT 'make sense' (ie to provide the greatest good for the greatest number)...
however, IF you analyze their actions in context of serving the interests of the 1%, then it makes perfect -if sociopathic- 'sense'...

so which is it:
EVERYONE in washingtoon is so-o-o-o freaking stooopid they don't realize the evil shit they are doing ?
*OR*,
EVERYONE is in service to the wants/needs of the 1% and act that way while averring otherwise ? ? ?

when you take off your rose-colored glasses and look at events objectively, then you come to the unfortunate conclusion: 'our' (sic) 'representatives' are representing the 1%, NOT the 99%...

remember: power NEVER devolves voluntarily...
NEVER...

—art guerrilla

”

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View by: Time | Thread

That One Guy (profile), 23 Jan 2014 @ 2:22am

Official report: 'Not team players'
I'm sure Obama, the NSA and it's defenders have to got be seriously put out, out of the two groups that have reviewed the NSA's actions, both of them have called BS on the NSA and WH's claims on how 'vital and important' the NSA's actions have been to 'stop terrorists'.

Don't they know, being part of the government means always agreeing with the 'official' position on things, even if it means throwing your dignity and credibility under the bus! /s

Yeah, it's hardly surprising that Obama rushed out the 'official' recommendations for 'reform' of the NSA and their activities, having yet another group point out how completely and utterly full of crap the NSA has been the whole time, and then publishing the 'recommendations', which yet again completely ignore the evidence, probably wouldn't go over to well, though given how scathing the report apparently is, I imagine there's going to be some interesting questions regarding the 'reform recommendations' Obama has proposed once the report is released in full.
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Anonymous Coward, 23 Jan 2014 @ 3:51am

Can't wait to see King's response...
Incoming Peter King calling them all anti-American traitors who all deserve to be fired and thankful they aren't imprisoned for life and other general flailing around.
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That Anonymous Coward (profile), 23 Jan 2014 @ 3:51am

"the speed of the carriers� responses likely would vary."

Maybe if they didn't have every agency sending their own varying legal requests trying to get their own deluge of information the process could have been streamlined.

Well still have the lack of information sharing happening, nothing about pouring all the data into a pot has helped that.
Everyone is more concerned about their budget than actually protecting anyone.

This program had its chance, it is a total failure and destroyed citizens rights as part of the cost. It is well past time for it to end and this loophole to be permanently blocked.
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anomynous, 23 Jan 2014 @ 4:02am

typo?
�...This was a failure to connect the dots, not a failure to connect enough dots.�

I can't help but think the second 'connect' was meant to be 'collect'
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FM Hilton, 23 Jan 2014 @ 4:19am

Dissenters
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Anonymous Coward, 23 Jan 2014 @ 4:25am

Does anyone else think our gov is insane...

Seriously, Washington is not SUPPOSED to do this.... War on drugs, terror ect... When you doggedly pursue a person or groups from afar AND declare them the "enemy"... and make RIDICULOUS laws where normal social interaction makes them the enemy, WE ALL COMMIT TREASON NO MATTER WHAT WE DO, unless we're all dicks all the time. THE WAR ON "TERROR" is insane... and attempted murder is attempted murder whether you are .gov or not
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FM Hilton, 23 Jan 2014 @ 4:27am

Darn those fingers!
What I wanted to write is that even though it's not stated in Mike's article, there were two dissenters, (both former lawyers in the Bush Administration) that did not approve completely with the consensus given in the final opinion.

"Two members, former Bush administration Justice Department lawyers Rachel Brand and Elisebeth Collins Cook, defended the bulk phone sweeps and said they were too valuable to shut down".

"I am concerned about the detrimental effect this superfluous second-guessing can have on our national security agencies and their staff," said Brand, who as a Justice lawyer defended USA Patriot Act legislation that provided the NSA with its authority to make the bulk phone collections."

While Mike does give the majority opinion here, one must remember there's always going to be a couple of assholes who want to continue this stuff because it's just 'too important' to not continue the invasion of privacy.

I guess they were the ones who approved the original stuff back in 2001, when Verizon started collecting data for the NSA.

Note that the Obama administration didn't even include this report in their final decision. Must have been uncomfortable with the conclusion that it's illegal.

Or maybe they just didn't get the memo.
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Anonymous Coward, 23 Jan 2014 @ 4:48am

Re: typo?
I think what they mean by "failure to connect enough dots" is the inability to connect the dots because of the failure to collect enough of them, however I do agree that this could have been worded better to be more clear.
[ link to this | view in thread ]
me@me.net, 23 Jan 2014 @ 4:52am

What failed to prevent 9/11
Is that these same shithead agencies failed to work cooperatively and all too often bickered over jurisdiction.
[ link to this | view in thread ]
art guerrilla (profile), 23 Jan 2014 @ 6:01am

Re:
insane ?
no...
psychopathic ?
possibly...

here's the thing, IF you analyze the actions of 'our' (sic) gummint leaders by superficial rationality and logic, it DOES NOT 'make sense' (ie to provide the greatest good for the greatest number)...
however, IF you analyze their actions in context of serving the interests of the 1%, then it makes perfect -if sociopathic- 'sense'...

so which is it:
EVERYONE in washingtoon is so-o-o-o freaking stooopid they don't realize the evil shit they are doing ?
*OR*,
EVERYONE is in service to the wants/needs of the 1% and act that way while averring otherwise ? ? ?

when you take off your rose-colored glasses and look at events objectively, then you come to the unfortunate conclusion: 'our' (sic) 'representatives' are representing the 1%, NOT the 99%...

remember: power NEVER devolves voluntarily...
NEVER...
[ link to this | view in thread ]
Anonymous Coward, 23 Jan 2014 @ 6:06am

no matter how 'scathing' the attack will be, hands up those who think it will be stopped? there will be even more ridiculous reasons put out to keep it, including to stop increasing the unemployed list!!
[ link to this | view in thread ]
BentFranklin (profile), 23 Jan 2014 @ 6:29am

Re: Re:
"however, IF you analyze their actions in context of serving the interests of the 1%, then it makes perfect -if sociopathic- 'sense'..."

Gave you first word and a light bulb for that.
[ link to this | view in thread ]
ChurchHatesTucker (profile), 23 Jan 2014 @ 6:36am

As crystal
It seems clear that President Obama clearly wanted to get his speech out of the way before this report came out.

I read you loud and clear.
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Anonymous Coward, 23 Jan 2014 @ 7:12am

Waits patiently for the next scare tactic or terrorist attack provided in secrecy by a shadow contractor of the US Government.
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boca, 23 Jan 2014 @ 8:14am

Keep in mind that it is up to legislative branch of government to make laws, not Obama's handlers's.
[ link to this | view in thread ]
The Original Anonymous Coward (profile), 23 Jan 2014 @ 8:56am

Comments from a retired judge
From Judge Napolitano

http://www.foxnews.com/opinion/2014/01/23/presidential-placebo-obama-massive-nsa-spying-pr ogram-still-alive-and-well/

Follow the link to his op-ed but this quote kind of sums it up:

"This mass spying is uniquely and profoundly un-American and will continue to undermine our freedoms. I am not arguing here that all spying is illegal -- just that spying on all of us is illegal.

Why bother with the formality of warrants when they permit all spying all the time? Spying on anyone not named in a warrant, or employing a warrant not based on probable cause, is the hallmark of those totalitarian regimes against which we have fought our just wars and our cold wars.

Yet today, the government in America seems more like the former enemies we vanquished than the place of life, liberty and the pursuit of happiness the Framers established."
[ link to this | view in thread ]
Jerrymiah, 23 Jan 2014 @ 9:10am

Waits patiently for the next scare tactic or terrorist attack provided in secrecy by a shadow contractor of the US Government
You're right. And on top of that, Obama has ordered the CIA to be ready to eliminate Edward Snowden, possibly taking taking advantage of the fact that the Olympics are being held in Russia where they will be able to infiltrate among the tourists that will attend the games and eliminate him the Russian way (lethal and untracable injection).
[ link to this | view in thread ]
Jerrymiah, 23 Jan 2014 @ 9:22am

Re: Darn those fingers!
He got and read the report alright. It's only that he believes very ardently that he's been elected to serve the US Military Industrial Complex and not to serve the people of America and defend the Constitution. To me that's a perfect ground for impeachment but everybody knows that Congress will not act on this.
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Anonymous Coward, 23 Jan 2014 @ 10:59am

Here again is the reflection I've mentioned before. Just because the NSA claims what it is doing is legal and just because they have a law saying it is, doesn't make it so.

We see all sorts of laws overturned every year when it finally makes it to court to be ruled on. Bad laws are bad laws. They are not necessarily Constitutional. It is this reason that Obama and the DOJ fight so hard to prevent standing or to claim National Security is whenever possible prevent the challenge from happening in court. When it makes it to court, National Security still trumps out until the courts wise up. That takes a while. But just like the lawyer trolls after the pirates with extortion letters, eventually the courts do wake up.

Obama and the DOJ have been having to pull the National Security claim out a lot, excessively, to prevent challenges to the actions of the security apparatus and to the government legal arms. They will soon have to start backing up those claims to the judges beyond just saying so.
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Anonymous Coward, 23 Jan 2014 @ 3:02pm

I've never seen this much common sense in a government report, ever.
[ link to this | view in thread ]
Dirkmaster (profile), 24 Jan 2014 @ 6:09am

Every time I hear these programs described as....
"Just too important to discontinue", all I can think is:

Hitchens' Razor
What can be asserted without evidence can be dismissed without evidence
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