An independent panel created after the 9/11 attacks says bulk collection of billions of American phone records violates the letter and the spirit of the law.
The new report from the Privacy and Civil Liberties Oversight Board undercuts the foundation of the National Security Agency's long-running phone metadata program, and suggests it conflicts with plain language in the Patriot Act and other laws on the books.
NPR obtained a copy of the report, which will be discussed and voted on Thursday at an open board meeting.
Among other conclusions, a three-member majority of the board says:
— The dragnet collection has no connection to a specific FBI investigation when it's being gathered, and so much information is being vacuumed up that it can't be considered relevant under the law.
— Requirements that telecoms provide data prospectively, each day as it's generated, don't jibe with the wording of Section 215, the part of the Patriot Act under which the collection happens.
— The law says the FBI — not the NSA — is the group to be doing the collection.
— Since lawmakers weren't fully aware of the secret legal interpretations, even though they twice extended the law without changing the wording, the program has been operating outside the bounds of its legal authority.
That analysis was far from unanimous, however, and two board members took the step of writing dissents that called those findings "gratuitous." They noted that two presidents and more than a dozen judges on the secret surveillance court had upheld the bulk collection for years. Those issues are now moving through the federal courts.
President Obama has already promised to tweak the metadata program by requiring judicial approval and narrowing how far NSA analysts can search for connections to known terrorist numbers. He's ordered the attorney general and the national intelligence director to report to him by the end of March with ideas about how to move the vast amount of data out of government hands for fear of privacy violations and other abuses.
The privacy board says it found no bad faith or intentional violations by people at the NSA, but it says the huge pool of data presents risks. The board will vote Thursday on whether to call for an outright end to the phone metadata program and call for more transparency from the government and the secret court.