WASHINGTON — In the week since President Barack Obama called for ending the National Security Agency’s bulk collection of U.S. telephone data “as it currently exists,” telephone carriers have uploaded customer calling records to NSA computers just as they have since the program was created after the terrorist attacks of Sept. 11, 2001.
The daily transfer of Americans’ telephone toll records to a government database is likely to continue at least for the next 18 months despite the president’s speech last Friday and a growing debate over the legality and effectiveness of the once-secret operation.
Critics got a boost Thursday when a federal privacy watchdog panel pronounced the NSA archiving of telephone metadata — numbers, times and lengths of calls, but not their content — an invasion of privacy that’s of “limited value” in counterterrorism cases.
But the Privacy and Civil Liberties Oversight Board split, 3-2, on whether the program is illegal and should be shut down, a divide that reflects larger disagreements in Congress and the public. It helps explain why Obama gave mixed messages about what he called “the program that has generated the most controversy these past few months.”
Obama said he was determined to preserve some form of the vast database, which he said the NSA and FBI used to map communications of terrorists. But Obama also made clear he is uneasy with so much private data in government hands, and sought to tighten access to it.
Obama said that except in a “true emergency,” the Justice Department must ask the Foreign Intelligence Surveillance Court for approval each time the NSA wants to search the records. NSA analysts used the archive about 280 times last year.
But Obama’s second proposal — that telephone companies or another entity hold the records in case the NSA or FBI needs them — appears likely to require legislation by Congress.
“Presumably the government could accomplish much of this through administrative rule making, but the question would be whether they would need an appropriation” of money to make it work, said Stephen Vladeck, a professor at American University Washington College of Law.
As a result, the NSA operation is likely to continue at least until June 1, 2015, when Section 215, the provision in the USA Patriot Act that authorizes the program, expires. Even then, lawmakers could simply extend it more or less as is.
As with most issues in Congress, there is little consensus. But the NSA program has opened fissures between traditional allies, and created partners among politicians who rarely see eye to eye.
The privacy board’s 238-page report drew praise from critics of the program, such as Sen. Patrick J. Leahy, D-Vt., who heads the Judiciary Committee, but skepticism from supporters, such Sen. Dianne Feinstein, D-Calif., who heads the Intelligence Committee. The two usually fight on the same side.
On this issue, and few others, Sen. Rand Paul, R-Ky., a tea party favorite, and Sen. Bernie Sanders, I-Vt., the only self-declared socialist in Congress, also are allied in opposition.
“The president’s recommendations last week did not go far enough to rein in the out-of-control National Security Agency,” Sanders said in a statement Thursday. “Congress must pass strong legislation to protect the privacy and civil liberties of the American people.”
Jay Carney, the White House spokesman, insisted Thursday that the database had proved helpful to investigators, describing it as “a useful tool in the effort to combat terrorists.”
The privacy board took issue with that claim. The panel could not identify a single case in which “the telephone records program made a concrete difference in the outcome of a counterterrorism investigation,” the report says.
“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,” it adds.
U.S. intelligence officials have likened the bulk collection program to a home insurance policy, saying it only needs to be useful once to justify the effort. Rachel Brand, a board member who worked in the Justice Department under President George W. Bush, captured that view in her written dissent, which was attached to the report.
The program’s “usefulness may not be fully realized until we face another large-scale terrorist plot,” she wrote. If that happens, “analysts’ ability to very quickly scan historical records from multiple service providers to establish connections (or avoid wasting precious time on futile leads) could be critical in thwarting the plot.”
Brand and Elisebeth Collins Cook, who also served in Bush’s Justice Department, did not agree with the three panel members who concluded that the program was illegal and should be shut down.
They are David Medine, a former Federal Trade Commission official in the Clinton administration; James Dempsey of the Center for Democracy and Technology, a privacy activist group; and Patricia Wald, a retired federal appeals court judge appointed by President Jimmy Carter.
The panel found no intentional misuse or abuse of the database, and concluded that most of the errors revealed in leaks by ex-NSA contractor Edward Snowden were minor and technical. The report includes new details about how long the data are kept and utilized, however.
Intelligence officials previously have said that only 22 NSA analysts are authorized to access the records, and only if there is reasonable suspicion that a specific U.S. phone number has been associated with a terrorist.
The NSA analyst then can trace all the calls made and received from the first number, and those from the second tier of numbers as well. In some cases, the analyst goes to a third circle of calls, a so-called third hop that exponentially multiplies the final tally.
The officials said that the NSA destroyed the phone records in its archive after five years, and that the vast majority of records were never accessed.
The privacy board reports that the NSA permanently holds the results of its queries, however, in a separate database it calls the “corporate store.” The panel estimated that the database could contain up to 120 million phone numbers that are not destroyed.
A senior intelligence official, who spoke on condition of anonymity to discuss a classified database, said NSA officials argued that they may need to analyze the numbers in the future since they were in some way linked to a suspect number in the past.
The debate took an unexpected turn Thursday when Attorney General Eric H. Holder Jr. did not rule out the possibility of plea negotiations with Snowden, who faces espionage and other charges for leaking thousands of classified documents.
“He broke the law. In fact, he caused harm to our national security, and I think he has to be held accountable for his actions,” Holder said in an interview on MSNBC. “People have really gotten hung up over whether he is a whistle-blower or something else. From my perspective, he is a defendant.”
In comments later in Virginia, Holder made clear that any talks would have to be based on Snowden’s returning from Russia, where he is living, and pleading guilty to federal charges.
“If Mr. Snowden wanted to come back to the United States and enter a plea, we would engage with his lawyers. We would do the same with any defendant who wanted to enter a plea of guilty,” Holder said.
Fielding mostly friendly questions via Twitter, Snowden responded in a Web chat from Moscow.
“Returning to the U.S., I think, is the best resolution for the government, the public and myself,” he said. “But it’s unfortunately not possible in the face of current whistle-blower protection laws, which through a failure in law did not cover national security contractors like myself.”