Section 215 Telephone Metadata Collection: The Privacy and Civil Liberties Oversight Board Trashes Pretty Much Everyone

Wow.  There’s really no other way to capture what the Privacy and Civil Liberties Oversight Board told the nation today in its 200+ page report on the NSA’s telephone metadata collection program.  It’s hard to say whether to deem the report “breathtaking” given its scope and the strength of its pronouncements.  Or whether simply to label it refreshingly straightforward and sane:  it’s nice for a change to see extensive legal analysis that recognizes where the hard questions rest, calls the easy ones for what they are, and doesn’t wring hands about it.

Of course, there was controversy, even among the PCLOB’s five members.  While they were unanimous in many of the key policy recommendations, two of the members split off on some critical issues (noted below).  The key point here is this:  the report was a tour de force, in its agreement, but also in its disagreement.

Here’s what the majority had to say:  the data collection we all have been focused on obsessively since the Snowden leaks began long before the government sought legal authority; the supposed authority, Section 215 of the Patriot Act, doesn’t remotely authorize what is going on; that provision applies to FBI investigations not the NSA anyway; as a matter of law congressional actions delaying the expiration of Section 215 authority could not possibly have approved the bulk telephone data collection program; even if Section 215 did permit this data collection, there is reason to doubt – it’s a tough question – whether such authorization would be constitutional; the telephone companies violated federal law in turning over the information in response to the Section 215 order; the Foreign Intelligence Surveillance Court is hobbled by its lack of adversary proceedings or readily-available appeals; the telephone metadata program was pretty much useless in catching terrorists or stopping terrorist events; and the whole thing is a tremendous threat to liberty.  It should be shut down.  It should not be authorized formally.  We should all come to our senses and remember American values.

And while the PCLOB report maintains a nice even official sounding tone to its report and doesn’t call anyone out explicitly, it’s hard to parse this analysis and not read between the lines.  The PCLOB is quick to make clear everyone involved acted in “good faith.”  Still, those in charge of our system of checks and balances have been seriously remiss, and the train has run completely off the tracks.  Notwithstanding Members of Congress knowing, and FISC Court judges approving, the whole this is a gross violation of the rule of law.

Of course, two of the PCLOB’s members coming from the more conservative end of the spectrum wrote dissents on some of these key issues.  They would not mandate an end to the Section 215 program.  They think there is an argument for its legality and its efficacy.  Yet, as noted below, they are much more ambivalent in their conclusions than the majority.  Surely, Stewart Baker’s strong use of this disagreement over at The Volokh Conspiracy to write the whole thing off as the misguided work of a “bare majority” is trying a bit too hard to overlook the importance of much of the agreement – and some of the disagreement too.

You might fairly wonder:  what makes the three members of the PCLOB in the majority right on the statutory invalidity of the Section 215 program right, and (say) the FISC judges over the years, or Judge Pauley in ACLU v. Clapper wrong?  Well, they call it a failure of process.  You can’t reach good decisions hearing one side, without a chance to appeal.  As their authority they cite former judges of the FISC, who apparently felt they could be candid:  while the judges of the FISC are comfortable deciding regular warrant applications ex parte, as judges usually do, “the Board was told by former FISA court judges that  . . . the judges’ decision making would be greatly enhanced if they could hear opposing views when ruling on requests to establish new surveillance programs.”  Note too, that unlike regular Article III judges, who have law clerks that cycle out offering fresh perspectives, the PCLOB pointed out that these judges work with “career employees” who “serve as staff to the judges rather than as advocates.”  Their work “does not reach to contesting the government’s arguments in the manner of an opposing party.”

Anyway, here’s what the PCLOB majority – and dissent – had to say:

Section 215 doesn’t remotely authorize what has been going on:

“Section 215 is designed to enable the FBI to acquire records that a business has in its possession, as part of an FBI investigation, when those records are relevant to the investigation.  Yet the operation of the NSA’s bulk telephone records program bears almost no resemblance to that description . . . Section 215 does not provide an adequate legal basis to support the program.”

Note:  Section 215 doesn’t let the NSA do anything:

“Under the Section 215 bulk telephone records program, the NSA acquires a massive number of calling records from telephone companies each day, potentially including the records of every call made across the nation.  Yet Section 215 does not authorize the NSA to acquire anything at all.  Instead, it permits the FBI to obtain records for use in its own investigations.  If our surveillance programs are to be governed by law, this clear congressional determination about which federal agency should obtain these records must be followed.”

            The FISC went on a bit of a legal gambol:

“[T]he interpretation of Section 215 adopted by the FISA court is dangerously overboard, leading to the implication that virtually all information may be relevant to counterterrorism and therefore subject to collection by the government.”

Now, members Brand and Collins were not on board with the Board on these statements about the interpretation of Section 215 itself.  But, interestingly, they weren’t such strong voices on the other side either.  They see the statutory interpretation question as tough.  Says Brand:

“The statutory question – whether the language of Section 215 authorizes the telephony bulk metadata program – is a difficult one.  But the government’s interpretation of the statute is at least a reasonable reading, made in good faith by numerous officials in two Administrations of different parties ….”

And writes Collins:

“I am not persuaded that the reading of the statute advanced by the government and accepted by the [FISC and Judge Pauley in ACLU v. Clapper] is the only reading of Section 215, but I am persuaded that it is a reasonable and permissible one.”

The PCLOB majority concluded the bulk data collection program is inefficacious anyway:

“Based on the information provided to the Board, including classified briefings and documentation, we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation.  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.”

Again, Brand and Collins disagree, but again, in weaker terms.  Neither points to any instances of specific uses of the metadata to catch terrorists or interrupt attacks.  They just say it is the wrong metric.  Writes Collins:

“[A] tool that allows investigators to triage and focus on those who are more likely to be doing harm to  or in the United States is both good policy and potentially privacy-protective.  Similarly, a tool that allows investigators to more fully understand our adversaries in a relatively nimble way, allows investigators to verify and reinforce intelligence gathered from other programs or tools, and provides ‘peace of mind,’ has value.”

And Brand says:

“There is no easy way to calculate the value of this program.  But the test . . . cannot simply be whether it has already been the key factor in thwarting a previously unknown terrorist attack.  Assessing the benefit of a preventative program such as this one requires a longer-term view.”

The PCLOB also concludes that while there’s been little or no evidence of intentional misuse of the data collected, that’s not the standard:

“[W]hile the danger of abuse may seem remote, given historical abuse of personal information by the government during the twentieth century, the risk is more than merely theoretical.”

A big part of the report is about transparency.  Here, the five members of the PCLOB are largely in agreement.  Democracy can’t function when we don’t know what is going on:

“Transparency supports accountability …. [T]here remains a deep well of distrust. … [T]he government should not base an ongoing program affecting the rights of Americans on an interpretation of a statute that is not apparent from a natural reading of the text. … [T]he government should have made it publicly clear . . . that it intended for Section 215 to serve as legal authority to collect data in bulk on an ongoing basis.”

The majority of the PCLOB would go all the way and put an end to the metadata program, quickly, albeit with some winding down process:

“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 . . . and has shown only limited value. … [T]he government should end the program.”

And while the dissenters would not shut down the program, they join the majority in its recommendations that government “immediately” modify the program as to reduce how much information is used (two “hops” rather than three), the amount of time the information is held (three years rather than five), and – most significantly – require NSA’s “reasonable articulable suspicion” standard used for querying the database to be approved by a FISC judge.  (In my humble opinion this last change is the only way to bring the program remotely into compliance with constitutional requirements.)

Dissenting PCLOB member Collins is surely correct when she writes, “the evaluation of this long-running program was the most difficult first test this Board could have faced.”  If one focused only on the areas of agreement among the Board, the first test was surely a success.  But one applauds the disagreement as well.  Transparent disagreement of this sort is surely the only way to get at anything remotely like a right answer.

 

About the Author(s)

Barry Friedman

Jacob D. Fuchsberg Professor of Law at New York University School of Law Follow him on Twitter (@barryfriedman1).