Report deems NSA telephone records program illegal


The Privacy and Civil Liberties Oversight Board issued a report today concluding that the National Security Agency’s bulk collection of telephone call records is illegal and should be ended. 


The three-person majority found that the NSA’s telephone records program:

  • violates Section 215 of the Foreign Intelligence Surveillance Act
  • violates the Electronic Communications Privacy Act, and
  • raises concerns under the First and Fourth Amendments. 

Moreover, the majority found that the program has added little national security value – while posing “serious threats to privacy and civil liberty concerns as a policy matter.” 


To mitigate these threats, the board made 12 recommendations, including “work[ing] with companies that regularly receive FISA production orders to develop rules permitting the companies to voluntarily disclose certain statistical information” and obtaining outside legal input for proceedings before the Foreign Intelligence Surveillance Court.


The board’s report has no legal authority, but it adds to a growing debate about how to balance privacy concerns with national security interests.  The President addressed these issues in a speech last Friday; the President's Review Group on Intelligence and Communications Technologies issued a report in December 2013; and late last year two federal courts reached opposite conclusions about the potential constitutionality of the program. 


The cumulative effect of all of this may increase momentum for legislation.  Senate Judiciary Committee Chairman Patrick Leahy (D-VT), for example, issued a statement today saying that today’s report “underscores the need to change the law to rein in the government’s overbroad interpretation of Section 215.”  Senate Intelligence Committee Chairman Dianne Feinstein, however, has vowed to defend the program, though she has previously supported legislation to improve the program’s transparency.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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