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Independent Panel Recommended by 9/11 Commission Blasts NSA Surveillance Strategy as ‘Chilling’ and ‘Illegal’!

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A government watchdog said Thursday that the National Security Agency’s mass  collection of phone records is illegal and should  be shut down.

The Privacy and Civil Liberties Oversight Board set  up by Congress in 2007 says in its report that the program exposed by  former NSA contractor Edward Snowden has “minimal” benefits for national  security. The panel claims there’s no legal basis for the bulk  collection of telephone records, concluding “we believe the program must  be ended.”

“We 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  counterterrorism investigation,” the board says in the 238-page report.

The report goes a step farther than last month’s report from a panel  appointed by President Barack Obama in rejecting the option to move bulk  data out of the hands of the government and requiring communication providers or  a third party to hold the data.

Read more: Privacy and Civil Liberties Board To Say NSA Data Collection Is Illegal |

An independent review board has labeled NSA hoarding of phone data ‘illegal’, adding that while it poses a serious threat to civil liberties, it was unable to find a “single instance” of a threat to the US where the program made any difference.

The Privacy and Civil Liberties Oversight Board (PCLOB) released  an acerbic report stating that the statute upon which the NSA  program was based – Section 215 of the Patriot Act – does not   “provide an adequate basis to support this program.” A  pre-release was seen by both the New York Times and Washington  Post.

PCLOB is an independent agency which was established by Congress  in 2004, having been a recommendation by the 9/11 commission. It  is intended to advise the executive branch of government on  matters of privacy and civil liberties, related to terrorism, and  ensure that Americans’ rights are not infringed upon in the  establishment of more stringent anti-terrorism measures.

The program has a “chilling effect on the exercise of First  Amendment rights,” on account of the revelations of  relations and connections between individuals and groups, the  report further stated. US citizens have constitutional rights to  free speech, association and privacy.

While US President Barack Obama gave a speech on Friday saying  that he thought the NSA database should be taken out of the hands  of the government, he did not call for a stop to the program.  However, the PCLOB opposed any legal mandate on the companies to  retain any data for longer than they currently do.

Direct from the independent panel’s report:

I. Telephone Calling Records

When a person completes a telephone call, telephone company equipment generates a record of certain details about that call. These “call detail records” typically include much of the information that appears on a customer’s telephone bill: the date and time of a call, its duration, and the participating telephone numbers. Such records also can include a range of technical information about how the call was routed from one participant to the other through the infrastructure of the telephone companies’ networks. Telephone companies create these records in order to bill customers for their calls, detect fraud, and for other business purposes.

While calling records provide information about particular telephone calls, they do not include the contents of any telephone conversations. Because these records provide information about a communication but not the communication itself, they often are referred to as a form of “metadata,” a word sometimes defined as “data about data.” Call detail records often are called “telephony metadata.”

After generating calling records in the normal course of business, telephone companies keep them on file for varying periods of time. Federal regulations presently require the companies to retain toll billing records for a minimum of eighteen months.25

II. What the NSA Collects under Section 215 of the Patriot Act

The Foreign Intelligence Surveillance Act (“FISA”) includes a “business records” provision that allows the FBI to obtain books, records, papers, documents, and other items that may be relevant to a counterterrorism investigation. To obtain such records under this provision, the FBI must file an application with the Foreign Intelligence Surveillance Court (“FISC” or “FISA court”) requesting that the court issue an order directing a person or entity to turn over the items sought.

26 The business records provision of FISA was significantly expanded by Section 215 of the Patriot Act in 2001, and as a result it frequently is referred to as Section 215.27 Under a program authorized by the FISA court pursuant to Section 215, the NSA is permitted to obtain all call detail records generated by certain telephone companies in the United States. The FISA court has determined that Section 215 provides a legal basis to order the telephone companies to facilitate this program by supplying the NSA with their calling records.28

Under the FISA court’s orders, certain telephone companies must provide the NSA with “all call detail records” generated by those companies.29 Because the companies are directed to supply virtually all of their calling records to the NSA, the FISA court’s orders result in the production of call detail records for a large volume of telephone communications; the NSA has described its program as enabling “comprehensive” analysis of telephone communications “that cross different providers and telecommunications networks.”30 The vast majority of the records obtained are for purely domestic calls, meaning those calls in which both participants are located within the United States, including local calls.

The calling records provided to the NSA do not identify which individual is associated with any particular telephone number: they do not include the name, address, or financial information of any telephone subscriber or customer. (Such information can be obtained by the government through other means, however, including reverse telephone directories and subpoenas issued to the telephone companies.) Nor do the records, as noted, include the spoken contents of any telephone conversation.

31 In other words, the NSA is not able to listen to any telephone calls under the authority provided by these orders.

In addition, the calling records that the NSA collects under its Section 215 program do not currently include “cell site location information.” That information, unique to mobile phones, is a component of a call detail record that shows which cell phone tower a mobile phone is connecting with. Thus it can be used to track the geographic location of a mobile phone user at that time the user places or receives a call. At the NSA’s request, telephone companies remove that information from their calling records before transmitting the

ecords to the NSA.

32 In the past, the NSA has collected a limited amount of cell site location information to test the feasibility of incorporating such information into its Section 215 program, but that information has not been used for intelligence analysis, and the government has stated that the agency does not now collect it under this program.

Some information obtained by the NSA under Section 215 could nevertheless provide a general indication of a caller’s geographic location. For instance, the area code and prefix of a landline telephone number can indicate the general area from which a call is sent. The same may be true of the “trunk identifier” associated with a telephone call, which pinpoints a segment of the communication line that connects two telephones during a conversation.33

Our analysis suggests that where the telephone records collected by the NSA under its Section 215 program have provided value, they have done so primarily in two ways. The first is by offering additional leads regarding the contacts of terrorism suspects already known to investigators, which can help investigators confirm suspicions about the target of an inquiry or about persons in contact with that target. But our review suggests that the Section 215 program offers little unique value here, instead largely duplicating the FBI’s own information-gathering efforts. The second is by demonstrating that known foreign terrorism suspects do

not have U.S. contacts or that known terrorist plots do not have a U.S. nexus. This can help the intelligence community focus its limited investigatory resources by avoiding false leads and channeling efforts where they are needed most. But the value of this benefit must be kept in perspective, as discussed below.

Based on the information provided to the Board, we have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack. And we believe that in only one instance over the past seven years has the program arguably contributed to the identification of an unknown terrorism suspect. In that case, moreover, the suspect was not involved in planning a terrorist attack and there is reason to believe that the FBI may have discovered him without the contribution of the NSA’s program.

Even in those instances where telephone records collected under Section 215 offered additional information about the contacts of a known terrorism suspect, in nearly all cases the benefits provided have been minimal — generally limited to corroborating information that was obtained independently by the FBI. And in those few cases where some information not already known to the government was generated through the use of Section 215 records, we have seen little indication that the same result could not have been obtained through traditional, targeted collection of telephone records. The classified briefings and materials the Board has received have not demonstrated that the increased speed, breadth, and historical depth of the Section 215 program have produced any concrete results that were otherwise unattainable. In other words, we see little evidence that the unique capabilities provided by the NSA’s

bulk collection of telephone records actually have yielded material counterterrorism results that could not have been achieved without the NSA’s Section 215 program.

As noted, the Board has examined closely the twelve cases compiled by the intelligence community in which telephone records collected under Section 215 “contributed to a success story” in a counterterrorism investigation. We have assigned each of these cases to one or more of seven “categories of success” that we have devised to illustrate the different forms of value that a counterterrorism program like this one could

provide. We do not ascribe any talismanic significance or scientific precision to these broad, non–mutually exclusive categories. But we believe they help illustrate what the Section 215 program has and has not accomplished to date.

These seven categories, and our analysis of how the government’s twelve examples fit within them, are as follows:

1. Enabling “Negative Reporting.”

Analysis of telephone calling records can establish that a known terrorism suspect overseas has not been in telephone contact with anyone in the United States, suggesting that a known terrorist or terrorist plot in a foreign country does not have a U.S. nexus. Such information can help the government focus its limited investigative resources where they are needed most. We found five instances in which Section 215 records were used in this way.

2. Adding or Confirming Details.

Analysis of telephone calling records can also help focus investigative efforts by providing additional information about terrorism suspects or plots already known to the government. The information obtained might confirm suspicions about a suspect, enable greater understanding about that suspect’s connections, or establish links between known suspects. We found seven instances in which Section 215 telephone records served this function. The value provided by the records, however, was limited. In nearly every case, the information supplied by the NSA through Section 215 offered no unique value, but simply mirrored or corroborated information that the FBI obtained independently using other means. And in none of these cases did the rapid speed with which Section 215 records can be analyzed lead to any tangible benefits. In sum, we believe that the limited value provided by the Section 215 program in these cases could have been achieved without the NSA’s bulk collection of telephone records.

3. “Triaging.”

In time-sensitive scenarios, where investigators have reason to believe that a terrorist attack may be imminent, or where they are otherwise conducting a fast-breaking investigation, prompt analysis of a suspect’s telephone records may help the government prioritize leads based on their urgency. While this category is not fundamentally different from the previous one, as it also involves adding more information about plots or suspects already known to the government, its special value may lie in the potentially critical production of swift results. We identified four instances in which telephone numbers derived from the Section 215 program were disseminated quickly to the FBI in this type of scenario. In none of these cases, however, did the information contribute to the disruption of a terrorist attack.

4. Identifying Terrorism Suspects.

Analysis of telephone records can contribute to the discovery of terrorism suspects previously unknown to the government. We found only one instance in which Section 215 telephone records arguably served this purpose and helped to identify a previously unknown suspect. In that case, however, the suspect was not involved in planning a terrorist attack — rather, he had sent money to support a foreign terrorist organization — and there is reason to believe that the FBI may have discovered him without the information it received from the NSA.

5. Discovering U.S. Presence of Known Terrorism Suspects.

The use of Section 215 records theoretically could help alert the government that a known terrorism suspect has entered the United States from abroad. We are not aware of any instances in which this has occurred.

6. Identifying Terrorist Plots.

The Board is not aware of any instances in which the use of Section 215 telephone records directly contributed to the discovery of a terrorist plot.

7. Disrupting Terrorist Plots.

The Board is not aware of any instances in which the use of Section 215 telephone records directly contributed to the disruption of a terrorist plot.

To help illustrate the concrete benefits provided by the NSA’s Section 215 program, we elaborate below on four counterterrorism investigations that members of the intelligence community have cited as demonstrating successful use of the program. These cases, which are among the twelve “success stories” referenced above, have been discussed by government officials in public statements, legal filings, and congressional testimony.549 We believe that scrutiny of these examples demonstrates the limited value provided by the NSA’s Section 215 program.


Written by voiceoftruthusa

January 24, 2014 at 5:13 pm

Posted in Uncategorized

2 Responses

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  1. Wow. Very informative. Thanks

    William Arthur Smith

    January 24, 2014 at 11:46 pm

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