White House NSA Panel Undermines Key Defense Of Phone Surveillance Program

12/18/2013 06:00 pm ET | Updated Dec 19, 2013

A White House-appointed review panel recommended in a report released Wednesday that the government cease storing call data on hundreds of millions of Americans, split the National Security Agency off from United States Cyber Command and reform the secret court that oversees foreign intelligence.

Sen. Patrick Leahy (D-Vt.), who is sponsoring omnibus legislation to reform the NSA's activities, praised the panel's report in a statement.

"The message to the NSA is now coming from every branch of government and from every corner of our nation: You have gone too far," Leahy said.

The 46 recommendations contained in the panel's report, which go far beyond reforms President Barack Obama has signaled he is willing to accept, could prove an embarrassment for him as NSA reform efforts move ahead. But they also fell short of proposals for an outright end to the call records program, and a wholesale rethinking of the U.S.' vast intelligence gathering operations.

Perhaps most damagingly for Obama and the NSA, the review panel concluded that the collection of telephone metadata -- the records of who we call, and when -- is far more revealing than government officials have let on. The panel's report follows a withering ruling issued by U.S. District Judge Richard Leon on Monday, finding the program likely to be unconstitutional.

This program was the first revealed in leaks from former NSA contractor Edward Snowden. Immediately after the first Snowden-sourced story on the NSA appeared, a White House spokesman called the call records program "a critical tool in protecting the nation from terror threats." But in the months since, the number of terror attacks the NSA has claimed its programs have helped prevent has steadily been whittled down. Leon noted that the government had provided no evidence that the call records collection was crucial in preventing any terror attack, and the panel agreed.

"In our view, the current storage by the government of bulk meta-data creates potential risks to public trust, personal privacy, and civil liberty," the panel found. It also concluded that the call records program was "was not essential to preventing attacks," and that data could have "readily" been obtained, quickly, in a more conventional manner.

The review panel was created by Obama in August to respond to revelations from Snowden. Outside observers at first doubted whether its members, many of whom have ties to the national security establishment, would serve as an independent voice in the NSA debate.

The panel did not call for the call records program to come to an end. Rather, it recommended that telecommunications companies hold on to that data "for the government to query when necessary for national security purposes," and raised the legal standard under which it might be searched. Privacy advocates are divided over whether outsourcing phone data storage to private companies provides a meaningful safeguard.

The nonprofit advocacy group Electronic Frontier Foundation, which has sparred with the NSA in court and in the public debate, was more cautious than Leahy in its response.

"It was definitely stronger than we expected. This was a panel that the White House essentially allowed to pick themselves," said Trevor Timm, an EFF activist. But he said directing private phone companies to hold onto Americans' call records was not a large enough shift, since "this information is still going to be stored. It's still going to be queried whenever the government wants."

The panel also recommended that information about Americans collected in communications intercepts when a foreign is targeted should immediately be deleted -- unless it has "foreign intelligence value." That protection, Timm argued, was less forceful than it might appear at first sight.

"We know their definition of foreign intelligence is so broad that it basically encompasses everything you could possibly talk about with someone who is overseas, from politics to economics to the weather," Timm said.

There is little sign yet as to whether the panel's report will push Obama toward embracing more expansive NSA reforms. Earlier on Wednesday, according to the White House, Obama praised his review group for "the extraordinary work that went into producing this comprehensive and high quality report." But in the wake of the Monday ruling, and continued jockeying in Congress, the report's recommendations could prove awkward for the administration.

"To put the matter bluntly, there is no way the administration will embrace a bunch of these recommendations," Benjamin Wittes, a senior fellow in Governance Studies at The Brookings Institution, wrote on his blog. "And from this day forward, any time the White House and the intelligence community resist these calls for change, the cry will go out that Obama, in doing so, is ignoring the recommendations of his own review panel."

This is a developing story and has been updated.

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