A national security think tank criticized on Monday recommendations by President Barack Obama’s review group to alter National Security Agency (NSA) surveillance programs and said they would interfere with vital U.S. intelligence operations.
The report by the Center for Security Policy (CSP) said the group’s recommendations would "eviscerate" the NSA’s collection of phone metadata, which is used for counterterrorism purposes. The group proposed that phone companies or a private third party hold the data and only allow access to them on a case-by-case basis if the NSA obtains an order from the Foreign Intelligence Surveillance (FISA) Court.
Phone "metadata" includes the numbers dialed, call times, and durations of calls, but not the content or subscriber names.
President Obama is expected to embrace many of the recommendations in an address on Friday. Wholesale changes to the metadata program would likely require congressional or court involvement.
CSP president and CEO Frank Gaffney said President Obama must be careful not to overreact to revelations about the program released in documents by NSA leaker Edward Snowden.
"It is highly unfortunate that in response to Edward Snowden’s actions, this review group—convened by President Obama—is advocating measures that will fundamentally interfere with vital U.S. intelligence operations," Gaffney said in a press release.
"The threats our nation continues to face demand an empowered and agile intelligence capability with appropriate oversight by Congress, and it is our hope that President Obama’s response to his review group’s report will reflect an understanding of that need, rather than a capitulation to those whose real agenda is to weaken America’s capacity for self-defense," he added.
The CSP report takes issue with a number of the review group’s recommendations, including several related to the metadata program authorized by Section 215 of the Patriot Act. Requiring intelligence agencies to obtain court approval for so-called 215 orders creates legal obstacles to accessing data that might be needed to address urgent national security threats such as potential terrorist attacks, the report said.
It instead suggested that President Obama defer to bipartisan legislation currently working its way through the intelligence committees that would require NSA analysts to have a "reasonable articulable suspicion" that a phone number is associated with terrorism before querying the metadata.
The report also said moving the data to private companies would raise new privacy concerns because it would then be held on less secure servers in numerous locations and be managed by more people. The metadata program is currently subject to oversight by the congressional intelligence committees and the FISA court, and only 22 intelligence agents have access to the database.
"While the review group would keep the 215 program in place, we oppose all of its recommendations on this program as they would place so many limitations on the metadata program that it would be rendered virtually useless," the report said. "We also believe these recommendations address privacy concerns that lack validity and would actually increase the potential for real privacy violations."
The report also defended the metadata program’s counterterrorism credentials.
"Although the review group report states that the 215 program ‘was not essential to preventing terrorist attacks,’ review group member Michael Morell contradicted this finding just after the report was issued when he said in a Dec. 27, 2013 Washington Post op-ed that if the metadata program had been in place before September 2001, ‘it would likely have prevented 9/11’ and ‘has the potential to prevent the next 9/11.’"
Additionally, the report raised concerns that extending privacy rights under U.S. law to foreign persons would tie the hands of intelligence agencies and prevent them from considering political or religious motivations, such as the Islamic extremism of al Qaeda members.
The Senate Judiciary Committee will hold a hearing tomorrow on the recommendations by President Obama’s review group.
Two federal judges so far have issued contradictory rulings about the constitutionality of the metadata program. Judge Richard Leon said the program was "likely unconstitutional" and "Orwellian," while Judge William Pauley said it was an important tool for apprehending terrorist conspirators and confirming ties.
The U.S. Supreme Court ruled in Smith v. Maryland (1979) that data like phone numbers are not protected by the Fourth Amendment because customers voluntarily provide them to companies, but privacy advocates say the ruling should be updated to consider new types of technology.