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Federal oversight board says NSA should stop collecting phone records entirely

January 23, 2014 at 6:09 PM EDT
Before the president gave a recent speech about why data collection should continue, a federal oversight board had recommended that the NSA cease collecting bulk phone records. Judy Woodruff gets two views from Elisebeth Collins Cook and David Medine, members of the Privacy and Civil Liberties Oversight Board.

JUDY WOODRUFF: A government review panel warned today that the NSA’s collection of Americans’ phone records is illegal and advised that the program be terminated. The recommendations by the Privacy and Civil Liberties Oversight Board go further than the Obama administration has been willing to accept.

The panel’s 234-page report includes dissents from two of the board’s five members.

For more on the group’s work, we turn to David Medine, who is the committee’s chairman, and Elisebeth Collins Cook, who was one of the board members to dissent some of the recommendations of the overall committee.

Welcome to you both.

DAVID MEDINE, chairman, Privacy and Civil Liberties Oversight Board: Thank you.

ELISEBETH COLLINS COOK, Member, Privacy and Civil Liberties Oversight Board: Happy to be here.

JUDY WOODRUFF: So, David Medine, again, you’re the chairman. Tell us — and you are speaking for three members of this group — what are the main reasons that you think this program should be discontinued?


And I would say that 10 of our 12 recommendations were unanimous, but this is one where there were dissents. And the reason that the program should be done away with is threefold. One is, it doesn’t comply with statute, Section 215, in a number of respects.

Second is, it impinges …

JUDY WOODRUFF: And 215 being the statute.

DAVID MEDINE: The business records under the USA Patriot Act that — that the program is supposedly authorized by, but there are number of requirements under the statutes, for instance, that the records go to the FBI and not the NSA — they in fact go to the NSA — that the records be relevant to an investigation.

And these were every record in the United States of every phone call and kept for five years, so it goes way beyond.

JUDY WOODRUFF: So, on legal grounds?

DAVID MEDINE: Legal grounds, constitutional grounds. We don’t say it is a violation of the Constitution, but we say it impinges on First and Fourth Amendment concerns of chilling speech.

Having the government hold this much information chills people wanting to call journalists and be whistle-blowers. It chills dissidents who wanted to call their political organizations. Even if this government — if information isn’t used, just knowing that the information is there can have a dramatic effect on rights of association and free speech.

JUDY WOODRUFF: So, for a variety of reasons.

Beth Cook, what about you? There were two of you on the board, as we said, who dissented. Why do you think the program should be continued?

ELISEBETH COLLINS COOK: I think the program is fully authorized by Section 215 of the Patriot Act, which has been codified as part of the Foreign Intelligence Surveillance Act.

And I would note that every federal judge to have considered this question also agrees that the statute provides the necessary authorization. Where I do agree with my colleagues on the board is that there are certain interim recommendations that we have made to impact the immediate operation of the program.

But I declined to join the majority’s statutory analysis, which I view to be flawed, on the constitutional analysis, which I viewed to be unnecessary and speculative.


JUDY WOODRUFF: I saw — I watched some of the statement that you all made today, David Medine, and one of the points I think the other — the dissenters made was that there’s really no evidence that the administration, either this one or the Bush administration, deliberately exploited or misused what they’re collecting from all these phone records.

That being the case, why wasn’t that persuasive?

DAVID MEDINE: Well, that’s right.

We didn’t see any evidence of misuse, but at least a number of us on the board have lived through the Watergate era, the Church Committee era, where government wasn’t always so beneficial to its citizens, where sometimes there was eavesdropping and spying on citizens, even though I think the president in his speech the other day talked about eavesdropping on Dr. Martin Luther King Jr.

So, even though the government today is responsible and by — for the most part following the rules, aggregating this much information, sensitive personal information, does run the risk in the future, if a government isn’t so well-intentioned.

JUDY WOODRUFF: How do you see that?

ELISEBETH COLLINS COOK: Well, this is one of the reasons I declined to join the constitutional analysis as the majority, which was concerned with programs that do not exist.

As we all concluded, some incredibly minuscule portion of the information that is collected is actually seen by human eyes. The information that the NSA has collected is a set of numbers. It is not in any way associated with the identities of the individuals.

So the programs that raise concerns for the majority and the majority found to raise First Amendment implications are programs that do not exist.

JUDY WOODRUFF: Why isn’t that persuasive?

DAVID MEDINE: Well, I think, on the one hand, you have the potential of serious privacy invasions.

And what we did is, we balanced that against the national security benefits of this program. And we did a very careful study of, when has it been effective and how has it been effective? And we concluded that, by and large, it has never thwarted a terrorist plot. It’s never really identified a terrorist that wasn’t known in advance.

JUDY WOODRUFF: You say by and large, so you mean there’s no evidence?

DAVID MEDINE: No evidence that it thwarted a plot or it’s — that it has detected a terrorist.

There are some benefits to the program, peace of mind, knowing that there is not a terrorist plot under way. But we decided that, given that minimal value compared to the massive potential security — privacy concerns, and really shifting the balance between citizens and their government — once the government knows everything about you, everyone you call, everyone you associate with, what your interests are, we decided, on balance, it was better to terminate this bulk collection program and still allow the government to go to phone companies on a case-by-case basis and get the information.

JUDY WOODRUFF: Do you accept, Beth Cook, their finding or conclusion that there has never been a beneficial effect from this program?

ELISEBETH COLLINS COOK: I also declined to join that portion of the board’s report.

I have looked at the efficacy of the program from a number of different angles. And my conclusion was that a program like Section 215 that allows us to connect dots about our adversaries, when used in conjunction, perhaps, with other programs, allows us to paint a better picture of our adversaries, allows us to triage threats, allows us to determine whether or not threats have a connection to the homeland.

To me, it’s a valuable program.

JUDY WOODRUFF: And, again, that was non-persuasive?


Our board was created at the recommendation of the 9/11 Commission, which said, after 9/11, let’s build up our security, let’s start connecting the dots and do a better job, but let’s not go too far, because, if we do that, the terrorists have won, because we have given up our privacy and civil liberties.

And so our job as a board is to strike the right balance between the two.

JUDY WOODRUFF: And you’re saying this would have — this is going too far.

Just finally, I want to ask you both, we know the president is calling for changing the program somewhat. He doesn’t want to do away with it altogether, but he says this information should be collected by something other — somebody or something other than the government.

To both of you quickly, how feasible is that?


ELISEBETH COLLINS COOK: I would be open to any alternative that posed fewer privacy risks, raised fewer privacy concerns and was equally effective.

Perhaps a failure of imagination on my part, I have been unable to develop that type of alternative. I think there are serious risks with counting on the telephone companies to maintain the records that are currently available today.

And I think it will be — I think it will lead to immense pressure to force the telephone companies to keep data that they don’t currently keep today, which raises a different set of privacy risks.

JUDY WOODRUFF: How do you see the feasibility of what the president is talking about?

DAVID MEDINE: Well, I don’t support having a third party collect the information, because I think that just creates more problems in terms of privacy.

I think, right now, again, you can go to the phone companies, but, also, let’s enlist American technology companies and say, you do a tremendous job on searching and managing databases. Let’s figure out a better way to do this, where we could target the bad guys and not collect every single American’s phone records.

JUDY WOODRUFF: Well, we thank you both, David Medine and Elisebeth Collins Cook, Beth Cook, both with the Privacy and Civil Liberties Oversight Board.

Thank you.

DAVID MEDINE: You’re welcome.