Obama in awkward spot after privacy board calls NSA snooping illegal

The bipartisan group also concludes metadata collection is mostly useless

A report Thursday by the Privacy and Civil Liberties Oversight Board (PCLOB) calling the National Security Agency's bulk phone records collection program illegal and mostly useless puts the Obama Administration in an awkward spot.

Less than a week ago, President Obama had described the program as vital to the NSA's anti-terror effort.

In a speech announcing modest changes to the program, the President had acknowledged privacy and civil rights concerns that have been raised over the collection of phone metadata records on U.S. residents.

Because of those concerns, the government would implement a new approach under which telecommunication companies or a third party would retain the bulk records rather than the NSA, Obama said. At the same time, he insisted that the metadata collection is important.

"The telephone metadata program under Section 215 was designed to map the communications of terrorists, so we can see who they may be in contact with as quickly as possible," Obama said last week, calling the effort "critical" and saying it does not involve the NSA review of the phone records of ordinary Americans.

That characterization is at odds with the PCLOB's recommendations.

The board is an independent bipartisan group created in 2007 to ensure that federal anti-terror initiatives do not compromise civil and privacy rights. The group is scheduled to release a report today on the government's authority to collect domestic phone metadata records under Section 215 of the USA Patriot Act.

But copies of the report leaked this morning to media outlets, which have widely reported on its findings.

According to those reports, the board's 238-page recommendation minces no words in describing the metadata program as minimally useful and not authorized under the Patriot Act, as the NSA has claimed.

The five-member board voted 3-2 to declare, that the Patriot Act does not provide a legal basis for the bulk collection of domestic phone records, MSNBC said, quoting from the report. In calling for an end to the collection program, the bBoard also noted that it violates constitutional protections against unreasonable searches and fails to comply with the Electronic Communications Privacy Act of 1986.

The report also recommended that government store phone records data for no more than three years instead of five years, as it does now. In addition, the government should always obtain court approval before it can search through the stored data, the group concluded.

The two members in the minority on the board maintained that the government may indeed have authority to collect phone records data under Section 215.

The White House Thursday defended the legality of the program and said it disagrees with the PCLOB's conclusions.

"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," a spokeswoman for the White House National Security Council said in an emailed statement.

"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 spokeswoman noted that the White House would review the new recommendations and "factor it into our thinking on these issues moving forward."

In a statement, the Computer & Communications Industry Association (CCIA), which has called for an end to the metadata program, said the PCLOB's recommendations are encouraging.

"[The] latest report will add to the growing debate after a federal judge and the president's review group also expressed serious misgivings about bulk data collection and other surveillance practices," CCIA president and CEO said in a statement. "These valuable, independent reviews will help as Congress continues to consider how to reform NSA programs and procedures."

The PCLOB's recommendations received a predictable response from groups like the American Civil Liberties Union, Government Watchdog Group and others opposed to the metadata program.

"The board's report makes even clearer that the government's surveillance policies, as well as our system of oversight, are in need of far-reaching reform," ACLU legal director Jameel Jaffer said in a statement.

Jaikumar Vijayan covers data security and privacy issues, financial services security and e-voting for Computerworld. Follow Jaikumar on Twitter at @jaivijayan or subscribe to Jaikumar's RSS feed. His e-mail address is jvijayan@computerworld.com.

See more by Jaikumar Vijayan on Computerworld.com.

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