NSA Telephone Records Collection Program Illegal?

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A recent report from the Privacy and Civil Liberties Oversight Board sheds doubt on the effectiveness of the NSA’s telephone metadata collection system.

This week, the U.S. Government’s Privacy and Civil Liberties Oversight Board released a report that claims the NSA’s program of bulk collection of telecommunication metadata is illegal.  The program came to light following Edward Snowden’s public disclosure of the program to the press last year.

The Privacy and Civil Liberties Oversight Board claimed the program is not effective in preventing terrorist attacks stating, “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.”

In the last seven years since the program has been in place, there was only one instance where the panel saw that the program helped authorities identify a threat, yet the panel members opined that such discovery would have been made through other means without the benefit of information revealed. The panel lacks legal jurisdiction to compel changes to the current NSA phone record collection activities, but may provide support to any future court hearings on the matter.

Democratic Senator Patrick Leahy of Vermont who is the ranking chairman of the Senate Judiciary Committee released the following statement regarding the public release of the panel’s findings,  “The report reaffirms the conclusion of many that the Section 215 bulk phone records program has not been critical to our national security, is not worth the intrusion on Americans’ privacy, and should be shut down immediately.”

Recent public debate on how to manage these telephone records has included suggestions by President Obama that private companies maintain the data.  Other discussions have included the possible creation of a new third party agency to harvest the telephone records, or to require telephone companies to hold call records and release them on request where more narrowly targeted.

The Federal courts remain divided on the NSA telephone metadata collection program, with U.S. District Judge Richard Leon, Washington DC calling the program “almost Orwellian” and ruling that is was a probably violation of the Fourth Amendment that prohibits unreasonable search and seizure.  Klayman V. Obama 2013 WL 6571596 (D.D.C. 2013) Decision 12/16/2013 

Roughly two weeks later, U.S. District Judge William H. Pauley III of the Southern District of New York ruled in favor of the NSA and against the ACLU in a lawsuit filed challenging the legality of the NSA’s program.  ACLU V. CLAPPER, No. 13 Civ. 3994 (WHP) Decision 12/27/2013   

Judge Pauley stated  in his decision, “The right to be free from search and seizures is fundamental, but not absolute…. Whether the Fourth Amendment protects bulk telephony metadata is ultimately a question of reasonableness,” he opined.

What is certain is that this large volume of data is creating a potential for an e-discovery goldmine.  One such case involved Terrance Brown who was on trial for a Florida bank robbery.  When the FBI conducted its investigation, telephone records for Terrance Brown were no longer in custody of MetroPCS, his cell phone service provider.  Defendant Brown pleaded not guilty.  The Defense attorneys for Brown believe and argued successfully to the judge that since the NSA had possession of important records not accessible from other sources, that the metadata should be ordered released to help prove Brown’s innocence.  “The government must be ordered to turn over the records for the two telephones that it attributes to Mr. Brown for the dates which are relevant to this case,” Brown’s attorney wrote in support of the motion to compel production of the telephone metadata from the NSA.

“The records are material and favorable to Mr. Brown’s defense; they are evidentiary and relevant to the issues in trial; they are not otherwise procurable by exercise of due diligence; the application is made in good faith and is not intended as a general fishing expedition; and, the records are necessary for Mr. Brown to meet the government’s evidence in this matter,” Brown’s attorney further elaborated.  While Brown’s attorney was successful in obtaining the court’s support for the motion to compel, the NSA responded saying that the geolocation records the motion was seeking was not part of the metadata collected.

Will the next person you know who endures a bitter divorce end up having to subpoena the NSA for call records of their spouse?  Only time will tell what the long term impacts of the NSA’s telephone metadata collection and monitoring program will be.

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