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PCLOB Releases Report, Recommends Government End §215 Program

Today, the Privacy and Civil Liberties Oversight Board (PCLOB) released its report (full text) on the NSA’s bulk telephony metadata collection program under Section 215 of the PATRIOT Act.  Although, the PCLOB’s report was originally expected to cover NSA collection programs undertaken pursuant under both Section 215 and Section 702 (of FISA), today’s report only addresses Section 215 collection and the operations of the FISC.  It appears the PCLOB’s findings on Section 702 will now be released in a separate report in the coming weeks.  But for now, though, the PCLOB has given us plenty to read in their 238-page report released today.

In the report, the PCLOB makes several recommendations, the most notable of which is that the government end bulk collection of phone records under Section 215:

“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.

Without the current Section 215 program, the government would still be able to seek telephone calling records directly from communications providers through other existing legal authorities. The Board does not recommend that the government impose data retention requirements on providers in order to facilitate any system of seeking records directly from private databases.

Once the Section 215 bulk collection program has ended, the government should purge the database of telephone records that have been collected and stored during the program’s operation, subject to limits on purging data that may arise under federal law or as a result of any pending litigation.

The Board also recommends against the enactment of legislation that would merely codify the existing program or any other program that collects bulk data on such a massive scale regarding individuals with no suspected ties to terrorism or criminal activity. Moreover, the Board’s constitutional analysis should provide a message of caution, and as a policy matter, given the significant privacy and civil liberties interests at stake, if Congress seeks to provide legal authority for any new program, it should seek the least intrusive alternative and should not legislate to the outer bounds of its authority.

The Board recognizes that the government may need a short period of time to explore and institutionalize alternative approaches, and believes it would be appropriate for the government to wind down the 215 program over a brief interim period. If the government does find the need for a short wind-down period, the Board urges that it should follow the procedures under Recommendation 2 below.”

While the report’s other recommendations were unanimously embraced by the entire five-member PCLOB, the recommendation that the government end the Section 215 program and its conclusion that the program “lacks a legal foundation under Section 215” were supported by only a three-person majority.

[Update 1:10pm]: Here are few initial reactions to the PCLOB report from Senator Leahy’s office and Representative Schiff’s office.

Stay tuned for more coverage and analysis of the PCLOB’s report here on Just Security.

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About the Author

was the Managing Editor of Just Security 2013-14. Follow him on Twitter (@thomasdearnest).