Skip to main content

Inside the obscure government report that blasts Obama for illegal NSA spying

Inside the obscure government report that blasts Obama for illegal NSA spying


A privacy watchdog lays out the strongest case yet against 'unconstitutional' metadata collection

Share this story

pay phone telephone sf stock 1024
pay phone telephone sf stock 1024

Illegal and unconstitutional: that’s what a sudden, blistering report from an obscure government committee has called the NSA’s phone-record database. The Privacy and Civil Liberties Oversight Board was conceived in the wake of 9/11, the event we’ve used to justify almost any level of surveillance. For five of its ten years, it hasn’t even been operational. But on Thursday, it came out with perhaps the harshest take yet we’ve seen on the NSA’s phone-record database, drawing a combination of sharp disagreement and immediate disregard from the president. In contrast to the vague promises of reform in Obama’s speech last week, though, the oversight panel’s 238-page report takes direct aim at the problems posed by the bulk collection of phone metadata — even if all it gets is a rhetorical victory.

Like Obama’s other NSA review panel, the oversight board made its decision based partly on classified documents, but the report follows a long trickle of disclosures about what the agency really does. Over the past six months, for example, the NSA’s claim that metadata collection foiled 54 terrorist plots has been largely debunked, leaving only a few cases where phone-record searches provided hints. It’s believed to have unmasked precisely one potential terrorist: Basaaly Moalin, who was convicted in 2013 not of planning an attack but of sending money to militant group al-Shabaab. The report says that while there was "critical value" in cutting off these funds, it’s telling that over seven years of data collection, Moalin’s case remains the only example of the program getting a lead on a suspect. It even suggests that the FBI may have found the link without the NSA's tip-off, and that the NSA could probably have gotten the same information without the database, even if it took more time.

What's proving a negative worth?

Over those same years, phone companies inadvertently sent the NSA credit card numbers, the NSA accidentally kept thousands of call-record files for over the five-year limit, and technicians created automated alert lists that sucked in records without authorization, then tried and failed to fix the problem multiple times before shutting down the alerts altogether. Declassified documents so far have only revealed a dozen cases where analysts intentionally misused the database, but accidental violations keep piling up.

The report doesn’t say that the program was useless, but it effectively damns it with faint praise. The board agrees that having so much information could let agencies "triage" terrorist threats by using the database to quickly hunt down and prioritize leads. It also allows "negative reporting" — being able to see every phone communication can let agents know if a terrorist has not been in contact with anyone in the US, whether that’s for peace of mind or to focus resources somewhere else. Has having these options open helped close cases or prevent attacks, though? The worth of peace of mind is difficult to measure.

What is easy to point to is the list of plots the program hasn’t foiled. The report compares the database to a security system or insurance policy that could be valuable even if it never goes off. "Yet, it is worth noting that the program supplied no advance notice of attempted attacks on the New York City subway, the failed Christmas Day airliner bombing, or the failed Times Square car bombing." Given these failures, it concludes, it’s unlikely to provide "significant value, much less essential value, in safeguarding the nation in the future."

4262128880_903b4c7974_z_mediumImage credit: Bobistraveling (Flickr)

Obama’s ad-hoc review panel of "outside experts," which released its report back in December, said something similar: the database had never actually disrupted a plot, but it could help confirm where attacks weren’t taking place. Its take, though, proved gentler than that of a committee whose members Obama didn’t even bother to nominate during most of his first term. After the press quoted the December panel report’s conclusion that the program was "not essential to preventing attacks," chair (and former CIA deputy director) Michael Morell followed up with a scathing editorial, saying that the records database could "prevent the next 9/11" and "needs to be successful only once to be invaluable." The 9/11 claim has been disputed by other members, and the panel explicitly recommended moving information out of a government-owned database, but Morell’s argument stayed at the forefront: the program hasn’t helped before now, but it might help someday, and that’s enough.

The program's operation has "almost no resemblance" to the law justifying it

Morell’s panel punted anything close to a legal question into the realm of the courts. But the oversight board’s biggest finding is that not only is the database almost certainly ineffective, it’s also probably illegal. The program is justified by the Patriot Act’s Section 215, which lets agencies request evidence that’s relevant to a national security investigation. But the panel says the current program "bears almost no resemblance" to this description. If a tool like the database is seen as relevant to investigations as a whole, this definition opens the door to any new, more invasive technology. "The word ‘relevant,’" the report says, "becomes limited only by the government’s technological capacity to ingest information and sift through it efficiently."

Defenders have pointed out that Congress knew about the program and voted twice to continue it, but the panel says legislators "merely postponed the sunset dates" and often had virtually no information about how the law was actually being used. On a broader level, if Congress signed off on the law, the report says it would still violate the First and Fourth Amendments: collecting the information counts as an unreasonable search, and freedom of speech suffers when the government can theoretically analyze the patterns of almost anyone’s life. Once again, metadata matters.

Image credit: Jamiesrabbits (Flickr)

For anyone who’s been frustrated by the slow progress of NSA reform, this is all gratifying to hear. But does it actually mean anything? The White House has already said it believes the board’s opinion is wrong — Obama even got to propose his reforms without a public report castigating their legal basis, insisting that the program was both effective and legal. The intelligence community and attorney general will be coming back in March to present alternatives to the current government database, but they’ll likely make only the most modest changes possible.

"The president has very clearly said that he wants to keep the capability."

Bills like the USA Freedom Act are meant to rein in metadata collection, and Section 215, which authorizes the phone-record collection, will come up for debate next year — it’s set to expire on June 1st, 2015. Any significant changes, though, will meet with heavy opposition. Senate Intelligence Committee Chair Dianne Feinstein (D-CA) quickly shot down the idea that Congress would go much further than Obama on reforms. "The president has very clearly said that he wants to keep the capability," she said on an NBC Meet the Press appearance. "So I think we would agree with him. I know a dominant majority of the — everybody, virtually, except two or three, on the Senate Intelligence Committee would agree with that."

What the oversight board recommendations can do is help set the tone for these debates and, because the board was given access to more information than the public will ever get, provide meaningful clues about what the NSA can do. But if we’re interested in arguments about how the program is illegal, we should look to Judge Richard Leon, who recently called bulk phone record collection an "Orwellian" overreach that was likely unconstitutional. Leon’s opinion is balanced by that of another judge, who ruled in favor of the government in a different trial. Both cases, though, will go to appeals, potentially setting the stage for a Supreme Court showdown. The chances that the judicial branch will crack down on metadata collection are far from certain, but it’s got a better shot than a report that the president decided to ignore before we even got to see it.

Today’s Storystream

Feed refreshed 36 minutes ago The tablet didn’t call that play by itself

Emma Roth36 minutes ago
Missing classic Mario?

One fan, who goes by the name Metroid Mike 64 on Twitter, just built a full-on 2D Mario game inside Super Mario Maker 2 complete with 40 levels and eight worlds.

Looking at the gameplay shared on Twitter is enough to make me want to break out my SNES, or at least buy Super Mario Maker 2 so I can play this epic retro revamp.

External Link
Russell Brandom40 minutes ago
The US might still force TikTok into a data security deal with Oracle.

The New York Times says the White House is still working on TikTok’s Trump-era data security deal, which has been in a weird limbo for nearly two years now. The terms are basically the same: Oracle plays babysitter but the app doesn’t get banned. Maybe it will happen now, though?

Asian America learns how to hit back

The desperate, confused, righteous campaign to stop Asian hate

Esther Wang12:00 PM UTC
External Link
Russell Brandom4:29 PM UTC
Edward Snowden has been granted Russian citizenship.

The NSA whistleblower has been living in Russia for the 9 years — first as a refugee, then on a series of temporary residency permits. He applied for Russian citizenship in November 2020, but has said he won’t renounce his status as a U.S. citizen.

External Link
Emma Roth4:13 PM UTC
Netflix’s gaming bet gets even bigger.

Even though fewer than one percent of Netflix subscribers have tried its mobile games, Netflix just opened up another studio in Finland after acquiring the Helsinki-based Next Games earlier this year.

The former vice president of Zynga Games, Marko Lastikka, will serve as the studio director. His track record includes working on SimCity BuildIt for EA and FarmVille 3.

External Link
Andrew J. Hawkins3:37 PM UTC
Vietnam’s EV aspirant is giving big Potemkin village vibes

Idle equipment, absent workers, deserted villages, an empty swimming pool. VinFast is Vietnam’s answer to Tesla, with the goal of making 1 million EVs in the next 5-6 years to sell to customers US, Canada and Europe. With these lofty goals, the company invited a bunch of social media influencers, as well as some auto journalists, on a “a four-day, multicity extravaganza” that seemed more weird than convincing, according to Bloomberg.

James Vincent3:17 PM UTC
Today, 39 years ago, the world didn’t end.

And it’s thanks to one man: Stanislav Petrov, a USSR military officer who, on September 26th, 1983, took the decision not to launch a retaliatory nuclear attack against the US. Petrov correctly guessed that satellite readings showing inbound nukes were faulty, and so likely saved the world from nuclear war. As journalist Tom Chivers put it on Twitter, “Happy Stanislav Petrov Day to those who celebrate!” Read more about Petrov’s life here.

Soviet Colonel who prevented 1983 nuclear response
Photo by Scott Peterson/Getty Images
The Verge
James Vincent3:03 PM UTC
Deepfakes were made for Disney.

You might have seen the news this weekend that the voice of James Earl Jones is being cloned using AI so his performance as Darth Vader in Star Wars can live on forever.

Reading the story, it struck me how perfect deepfakes are for Disney — a company that profits from original characters, fans' nostalgia, and an uncanny ability to twist copyright law to its liking. And now, with deepfakes, Disney’s most iconic performances will live on forever, ensuring the magic never dies.

External Link
Elizabeth Lopatto2:41 PM UTC
Hurricane Fiona ratcheted up tensions about crypto bros in Puerto Rico.

“An official emergency has been declared, which means in the tax program, your physical presence time is suspended,” a crypto investor posted on TikTok. “So I am headed out of the island.” Perhaps predictably, locals are furious.

The Verge
Richard Lawler2:09 PM UTC
Teen hacking suspect linked to GTA 6 leak and Uber security breach charged in London.

City of London police tweeted Saturday that the teenager arrested on suspicion of hacking has been charged with “two counts of breach of bail conditions and two counts of computer misuse.”

They haven’t confirmed any connection with the GTA 6 leak or Uber hack, but the details line up with those incidents, as well as a suspect arrested this spring for the Lapsus$ breaches.

The Verge
Richard Lawler1:00 PM UTC
Green light.

Good morning to everyone, except for the intern or whoever prevented us from seeing how Microsoft’s Surface held up to yet another violent NFL incident.

Today’s big event is the crash of a NASA spaceship this evening — on purpose. Mary Beth Griggs can explain.

David Pierce12:54 PM UTC
Thousands and thousands of reasons people love Android.

“Android fans, what are the primary reasons why you will never ever switch to an iPhone?” That question led to almost 30,000 comments so far, and was for a while the most popular thing on Reddit. It’s a totally fascinating peek into the platform wars, and I’ve spent way too much time reading through it. I also laughed hard at “I can turn my text bubbles to any color I like.”