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Review Board: NSA Surveillance Program Barely Toes Constitutional Line

Independent panel says FISA provision that results in collection of Americans' electronic information is not violating privacy laws.

WASHINGTON, D.C. -- An NSA program that collects electronic information on Americans and U.S. residents is a valuable and effective anti-terrorism tool -- but also goes “right up to the line” as far as its constitutionality,” an independent review panel said Wednesday.

The Privacy and Civil Liberties Oversight Board issued a 190-page report focused specifically on information gathered under what is known as Section 702 of the Foreign Intelligence Surveillance Act (FISA), and made recommendations primarily aimed at increasing transparency. But it did not urge any significant changes aimed at reining in the program.

Section 702 enables U.S. intelligence officials to collect the telephone calls, emails and other electronic communications of “U.S. persons” -- both citizens and lawful permanent residents -– if those persons are communicating with a foreign target. The content of those communications is shared, under certain limited circumstances, with the FBI and CIA.

Details of how the NSA operates the Section 702 program, along with other U.S. intelligence operations, were revealed in June 2013 through the leaking of classified documents by former NSA contractor Edward Snowden.

The board, which conducted the review at the request of members of Congress and President Barack Obama following the disclosures, said the Section 702 program operates within constitutional and legal boundaries.

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“Operation of the Section 702 program has been subject to judicial oversight and extensive internal supervision, and the board has found no evidence of intentional abuse,” it said.

But board Chairman David Medine said after a meeting Wednesday to formally adopt the report that the program walks a fine legal line.

“Did Congress authorize this program? We think yes,” he said. “… This is legislation that was publicly debated. Some people would have liked it to be more restrictive; they didn't necessarily succeed.

“The separate question is: Is this constitutional? And that's where the board unanimously said, 'There's some questions. We're right up to the line.'”

The report itself found that the program “raises important but difficult legal and policy questions.” Among them, it said, “the scope of the incidental collection of U.S. persons’ communications and the use of queries to search the information collected under the program for the communications of specific U.S. persons.”

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The five-member board made 10 recommendations for revising the program, including requiring the NSA to annually report the number of electronic communications it acquires involving U.S. persons to Congress and to the public, “to the extent consistent with national security.”

Director of National Intelligence James Clapper said in a statement that his office would carefully consider the proposals.

"We take very seriously the board’s concerns regarding privacy and civil liberties, and we will review the board’s recommendations with care," he said.

The Foreign Intelligence Surveillance Act (FISA) is the principal federal law regulating the collection of signals intelligence – or electronic surveillance -- by the U.S. intelligence community on U.S. persons. Section 702 specifically authorizes the targeting of foreigners living abroad, but also addresses the collection of communications of U.S. persons – either those who are in contact with a foreign target or those whose information is inadvertently swept up during data collection. The latter communications are generally required to be destroyed.

The most basic requirement of FISA is that the intelligence community must have an order from the Foreign Intelligence Surveillance Court (FISC) to target any U.S. person anywhere in the world for electronic surveillance.

The law was initially passed in 1978 as part of the response to abuses by the FBI and other agencies, and has been repeatedly updated to address changes in communications technology, including development of the Internet. Section 702 was added in 2008.


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The Office of the Director of National Intelligence last week for the first time provided a breakdown of its use of Section 702 to collect the communications of U.S. persons, indicating that the NSA and CIA “queried” the data gathered through the program approximately 11,600 times last year.

That number doesn’t include the FBI, which doesn’t track “queries” it makes to the data, according to the ODNI’s response to a request from Sen. Ron Wyden, D-Ore.

In January, the board published a much more critical evaluation of the NSA’s collection of telephone records or metadata on most Americans under Section 215 of the Patriot Act – the extent of which also was revealed by Snowden’s leaks -- determining that the law “does not provide an adequate legal basis to support the program.”

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U.S. Appeals Court Judge Patricia M. Wald, a member of the privacy and civil liberties board, said Snowden’s leaks provided impetus for independent review of U.S. intelligence programs in light of recent technological advances.

“We were there without a chief and with no staff for seven or eight months,” she said, referring to the board’s status before the Snowden leaks. “I certainly think the Snowden revelations expedited the review of these two (programs). There's no question about that.”

Abigail Williams of NBC News contributed to this report.