President's Review Board Slams NSA's Overbroad Surveillance Operation

The President's Review Group on Intelligence and Communications Technologies, tasked with reviewing the NSA's surveillance program, released its highly anticipated report Wednesday. President Obama did not offer any statements assessing the Group's recommendations, but in a released statement, the White House said, "Over the next several weeks, as we bring to a close the Administration's overall review of signals intelligence, the President will work with his national security team to study the Review Group's report, and to determine which recommendations we should implement. The President will also continue consulting with Congress as reform proposals are considered in each chamber." The group offered forty-six recommended changes to our intelligence collection activities and highlighted that while the national security threats facing the U.S. are significant, the U.S. is "deeply committed to the protection of privacy and civil liberties - fundamental values that can be and at times have been eroded by excessive intelligence collection."

As the Review Group so aptly pointed out, with respect to surveillance of Americans, the question we should be asking is "not whether granting the government authority makes us incrementally safer, but whether the additional safety is worth the sacrifice in terms of individual privacy, personal liberty, and public trust." This is an important distinction and a point raised by AAI and other civil liberties organizations. We have consistently said that our counterterrorism programs should be examined to determine if whatever purported additional safety the programs may provide is worth the loss to our personal freedoms and privacy.

One of the most controversial aspects of the NSA's surveillance operation is its collection of bulk telephony metadata, revealed in documents leaked by former NSA contractor Edward Snowden. The Review Group suggested a number of recommended reforms under Section 215 of the Foreign Intelligence Surveillance Act (FISA).

Currently, under section 215 of FISA, the government stores bulk metadata, which includes telephone numbers called, received, and time and date of call. The Group recommended that the storage of such data be held privately by an entity in the private sector, and available for the government to query when necessary for counterterrorism purposes. "As a general rule and without senior policy review, the government should not be permitted to collect and store mass, undigested, non-public personal information about US persons for the purpose of enabling future queries and data-mining for foreign intelligence purposes," wrote the Review Group.

The Review Group provided a thorough analysis of the legal basis the NSA has used to defend its bulk metadata program - such as the 1979 Supreme Court case, Smith v. Maryland, which as the Review Group noted leaves many unanswered questions as to whether the decision is still good law and applicable in a "very different technological society from the one that existed in the 1970s." Earlier this week, a U.S. District Court judge ruled the NSA's metadata program as likely unconstitutional.

The Review Group's proposals also included appointing a civilian as the next director of the NSA, the creation of a public interest advocate to advocate on behalf of the public before the Foreign Intelligence Surveillance Court (FISC), and providing Privacy Act protections to both U.S. and non-U.S. persons.

An ardent supporter of the NSA's bulk metadata program, House Permanent Select Committee on Intelligence Chairman Mike Rogers (R-MI) said he has "serious concerns with some of the report's 46 recommendations." On the other hand, Rep. Adam Schiff (D-CA), a senior member of the Committee, praised the proposal to "end the program that collects metadata on phone calls made in the United States." Senator Patrick Leahy (D-VT), who was one of the original authors of the Patriot Act, and has consistently expressed reservations about its scope and now has authored the USA Freedom Act, which ends the NSA's bulk metadata program said, "The message to the NSA is now coming from every branch of government and from every corner of our nation: You have gone too far. The bulk collection of Americans' data by the U.S. government must end. This momentous report from the President's closest advisers is a vindication of the efforts of a bipartisan group of legislators that has been working for years to protect Americans' privacy by reining in these intelligence authorities. I welcome the report and call on the President to immediately consider implementing the recommendations that can be achieved without legislation."

While we welcome the recommendations by the Review Group and hope the President adopts the changes as soon as possible, particularly the need for the intelligence community to promote transparency and accountability, AAI and many civil liberties groups are still concerned about the collection of personal information of U.S. persons by any entity, public or private. We don't think the bulk metadata program has made us any safer, and we think it should be terminated.

This post originally appeared on the Arab American Institute's blog.