The board is the third official government entity in recent months to examine the NSA's metadata program and question its utility in fighting terrorism.
The National Security Agency’s telephone metadata program is illegal, a majority of the Privacy and Civil Liberties Oversight board has concluded.
The board is scheduled to officially present its conclusions Thursday afternoon. An early copy of the report was obtained by the . The board’s report concludes that the metadata program, “lacks a viable legal foundation under Section 215 [of the Patriot Act], implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value.” Three members of the five person board agreed that the government should end the program, saying it was not just ineffective but illegal. The other two board members dissented from that conclusion.
The board is the third official government entity in recent months to examine the NSA’s metadata program and question its utility in fighting terrorism. In December, a federal judge found that the metadata program was likely unconstitutional and wrote that he had ”serious doubts about the efficacy of the metadata collection program.” Shortly thereafter, a White House appointed surveillance policy review board found that the program was “not essential” to preventing attacks. Top intelligence officials have argued otherwise.
Yet the board’s conclusion about the usefulness of the program was unequivocal. “[W]e 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 terrorist investigation,” the report states.
President Barack Obama announced a series of changes to surveillance policy last week, but none of them go as far as privacy advocates have been demanding. Legislators in Congress are currently battling over whether to explicitly authorize the program or end it entirely. Even so, Congress may not have the final say.
Since the scope of the metadata program was first revealed through information leaked by former NSA contractor Edward Snowden last June, federal courts have begun weighing in on the constitutionality of the program. If Congress does not alter the law, challenges to the NSA’s surveillance policies could reach the Supreme Court.
Early in 2013, the high court dismissed a challenge to a Bush-era warrantless surveillance law arguing that the plaintiffs couldn’t prove the government was spying on them. Snowden’s revelations about the scope of the NSA’s metadata program have made it impossible for the courts to avoid ruling on the issue–which means that the only reason the Supreme Court would be able to avoid weighing in is if Congress has already ended the program.