The US National Security Agency’s telephone metadata programme is illegal and should be shut down, a government privacy board had recommended in a report released on Thursday.
The programme, which collects the phone call records on a massive scale, has provided only minimal benefits in counterterrorism efforts, according to a narrow majority of the Privacy and Civil Liberties Oversight Board.
The five-member board released its 238-page report on the same day Attorney General Eric Holder said the US would be open to negotiating a solution that would “engage in conversation” with former NSA contractor Edward Snowden in an effort to find a resolution of his case.
Revelations about the widespread collection of telephone and internet records came to light in the documents Snowden leaked to media outlets. The former NSA contractor fled to Russia, where he remains.
The Privacy and Civil Liberties Oversight Board released its report after what it said was an in-depth analysis of the bulk telephone records programme.
The report includes a detailed critique of the legal theory behind the programme, sections 215 and 702 of the PATRIOT Act, which was passed after the September 11, 2001, terrorism attacks against New York and Washington.
A majority of the board – its three Democratic members – found the programme “inconsistent with the statute” on several grounds, including: call records have no connection to any specific FBI investigation at the time they are gathered; the NSA requirement that telephone companies furnish calling records on a daily basis is not grounded in law; and the statute permits only the FBI to obtain documentation for its investigations but “does not authorise the NSA to collect anything.”
The board said the programme further violated the Electronic Communications Privacy Act, which prohibits telephone companies from sharing customer records with the government except in response to specific circumstances, which do not include section 215 of the Patriot Act.
The board’s two Republican members consented with most of the board’s conclusions regarding privacy and how the programme could be improved, but disagreed with the finding that the programme is illegal and should be shut down.
Board member Rachel Brand, a Republican, said since the Snowden revelations, the pendulum has swung on intelligence practices.
“I have no doubt that if there is another large-scale terrorist attack against the United States, the public will engage in recriminations against the intelligence community for failure to prevent it,” Brand said.
The White House found itself agreeing with the Opposition Republicans and disputed the board’s majority findings, saying it disagreed with the board’s legal analysis.
During a live question and answer session for a website that supports his cause, Snowden was asked on Thursday whether the board’s report would have any impact.
“I don’t see how Congress could ignore it, as it makes it clear there is no reason at all to maintain the 215 programme,” he said.
He cited a passage in the report saying that ending the programme would eliminate the privacy concerns associated with bulk collection of phone records and would ensure any governmental requests for telephone calling records are tailored to a specific investigation.
The report follows US President Barack Obama’s announcement of proposed reforms to US spying programmes in response to outrage from allies, lawmakers and civil libertarians after the Snowden revelations.
Obama said the United States would limit spying abroad and proposed reforming its domestic collection of telephone data to give more protection to individual privacy. But he made clear that his administration considers it legal and useful and did not say it would end.