PCLOB Urges End to Bulk Metadata Collection, Questions Legality, Constitutionality

The Patriot Act Section 215 bulk metadata collection program is “inconsistent with the statute that authorizes it on a number of grounds,” said PCLOB Chairman David Medine at a board meeting Thursday, explaining the position of the board’s majority. The bulk nature of the collection means it “cannot be regarded as ‘relevant,'” and it is done with “serious constitutional and privacy concerns,” he added, saying it should be discontinued in its current form.

PCLOB’s first recommendation is killing the program: “The Section 215 bulk telephone records program lacks a viable legal foundation under Section 215, implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value. As a result, the Board recommends that the government end the program.” PCLOB advised that the government can seek the metadata from communications providers but recommends against imposing data retention mandates, as some companies have feared may happen.

The White House disagrees on the legal reasoning PCLOB used. “Specifically on the Section 215 bulk telephony metadata program, we disagree with the Board’s analysis on the legality of the program,” a White House spokeswoman said in a statement. “Consistent with the recent holdings of the United States District Courts for the Southern District of New York and Southern District of California, as well as the findings of 15 judges of the Foreign Intelligence Surveillance Court on 36 separate occasions over the past seven years, the Administration believes that the program is lawful. As the President has said though, he believes we can and should make changes in the program that will give the American people greater confidence in it."

"The results of the program have been limited,” said PCLOB member Jim Dempsey, also vice president-public policy at the Center for Democracy & Technology. “We concluded the program should be ended” in its current form, he said. Dempsey framed the policy discussions as flawed, where the meaning of “relevant” has been distorted, and said policymakers will have to “dig ourselves out of that hole.” President Barack Obama shouldn’t accept the need for bulk collection as a given, added Dempsey.

"Words like ‘relevance’ simply don’t bear the weight that’s put upon them,” said PCLOB member Patricia Wald, a former judge for U.S. Court of Appeals for the D.C. Circuit.

Republican Defenders

Dempsey also slammed the notion of moving the bulk storage of metadata to the phone companies or a third party, as Obama’s review group suggested in December and which Obama tacitly endorsed last week (CD Jan 21 p1) in saying the government shouldn’t hold the metadata. “I see no privacy benefit in that at all, and I think it’s important to recognize that from the get-go,” Dempsey said. “There’s no easy out.” Obama has said he will consider “alternative approaches” to the program before the FISC is due to reauthorize the authority on March 28. He endorsed several updates to surveillance law, including the inclusion of outside voices for the FISC during novel cases of law. PCLOB made its concerns known to the White House before Obama gave his speech, Medine said.

A Republican minority of PCLOB members defended the program despite joining the majority on the lion’s share of FISC and transparency recommendations. The report contains “speculative and unnecessary legal reasoning,” said PCLOB member Elisebeth Cook, a counsel for WilmerHale. She called the phone surveillance “valuable” and a program that has in the past and “will allow us to connect the dots” in fighting terrorism: “No content, no identities.” She wouldn’t shut down the program out of any privacy concerns and dissented on that recommendation, she said.

"This legal question will be resolved in the court and not by us,” said PCLOB member Rachel Brand, chief counsel-regulatory litigation for the U.S. Chamber of Commerce’s litigation arm. Brand was the other Republican member who dissented for some of the more critical recommendations to end the Section 215 program. She called the program valuable and “literally a system of numbers with no names associated with any of them.” It should not be shut down “without an adequate alternative already in place,” said Brand. She doubts she could support moving the metadata storage to a third party or the phone companies, however, saying perhaps it’s “wiser to leave the program as it is,” with the metadata still at the NSA but with the stronger transparency and privacy protections implemented that PCLOB recommends.

Brand and Cook issued separate statements explaining their dissents and concerns with certain PCLOB recommendations. All five members agreed on the bulk of recommendations, however. All PCLOB members stressed that they found no abuse of surveillance authorities and that they respected the intelligence community.

Limit of Two Hops

The report touched on other aspects of how the program is conducted. PCLOB recommended the government query only metadata “two steps removed from a number associated with a terrorist organization instead of the current three,” as Obama phrased it in his recent speech when he made that policy change an immediate practice. The report also recommends the government hold metadata for three years instead of five, if it still holds it. It called on Congress to establish a special advocate for the FISC. “The Presiding Judge of the FISC should select attorneys drawn from the private sector to serve on the panel,” PCLOB said in its report. “The attorneys should be capable of obtaining appropriate security clearances and would then be available to be called upon to participate in certain FISC proceedings.” The choice of which proceedings should be left to FISC discretion, the report said. Congress should also pass a bill to “expand the opportunities for appellate review of FISC decisions,” it said. Among its transparency recommendations, PCLOB said the government should work with companies “to develop rules permitting the companies to voluntarily disclose certain statistical information” about the surveillance requests they receive.

Members of Congress either praised PCLOB for recommending curbing surveillance or slammed it, depending on their inclinations. “I am disappointed that three members of the Board decided to step well beyond their policy and oversight role and conducted a legal review of a program that has been thoroughly reviewed,” said House Intelligence Committee Chairman Mike Rogers, R-Mich., a frequent defender of the programs. He pointed to the multiple instances when courts have backed the program and criticized the PCLOB report for questioning, beyond what he says is its expertise, the effectiveness of surveillance.

Chairmen of the Judiciary committees in both chambers indicated the report spoke to the need for serious updates to surveillance law. There’s a “growing chorus” to end the program, said Senate Judiciary Committee Chairman Patrick Leahy, D-Vt. “The report appropriately calls into question the legality and constitutionality of the program, and underscores the need to change the law to rein in the government’s overbroad interpretation of Section 215.” Leahy introduced the USA Freedom Act last year, which would end the bulk collection. House Judiciary will “hold a hearing soon to review the various recommendations recently made by President Obama, the President’s Review Group on Intelligence and Communications Technologies, and the Privacy and Civil Liberties Oversight Board,” said Chairman Bob Goodlatte, R-Va. Goodlatte criticized the phone surveillance program as needing “significant reform.”

The PCLOB report “spells the final end of the government’s bulk collection of telephone metadata,” added Rep. Adam Schiff, D-Calif., a member of the House Intelligence Committee. Congress should update the program “so that bulk collection is no longer necessary and our security needs can be met by a more traditional approach of going to the telephone companies when we have reason to believe a number is connected with a plot,” he said. Senate Intelligence Committee member Ron Wyden, D-Ore., largely endorsed the report’s conclusions and said that it and Obama’s review group report “should play a major role in any reform effort.” Sen. Mark Udall, D-Colo., backed the PCLOB scrutiny of the program’s effectiveness: “As a member of the Senate Intelligence Committee, I have seen no evidence that the bulk phone records program has disrupted a terrorist attack or generated any helpful information that could not have been obtained through less intrusive legal means."

Obama didn’t really say “what the new program would look like,” Dempsey said of the president’s talk this month. “It was not clear he fully understands the need to go back to some basics.” PCLOB overall has no position on Obama’s speech, Brand said, declining to weigh in personally. (jhendel@warren-news.com)