Advisory Board Report Won't Alter NSA Operations Despite Hype

By Wayne Rash  |  Posted 2014-01-23

Advisory Board Report Won't Alter NSA Operations Despite Hype

Minutes after the Privacy and Civil Liberties Oversight Board released its finding that the unrestricted collection of phone metadata by the National Security Agency was unconstitutional, the White House rejected it.

The presidential commission was originally chartered shortly after the terrorist attacks of Sept. 11, 2001, but remained unfilled for years. Finally a board of five—two Republicans and three Democrats—was appointed by President Obama, and set about studying the collection of phone calling records by the NSA.

The PCLOB (or Pee-Klob as it's pronounced in official Washington, D.C.) is an advisory commission that has no actual power. What this means is that while it can offer advice to the president, that's all it can do. The president doesn't have to pay any attention to that advice. In some cases, such a commission can be used by the president as a reason to take action, but that's not what's happening here.

In fact, as soon as the outcome of the PCLOB's finding became known when the contents of its report were leaked to The Washington Post, the White House began distancing itself from the board. Shortly after the report became official Jan. 23, White House Press Secretary Jay Carney told reporters that the administration disagrees with the board's analysis on the legality of the NSA data collection program.

Meanwhile, advocates on one side or another of the data collection question issued their predictable responses. The Partnership for Civil Justice issued a statement that lauded the board's findings, "The Privacy and Civil Liberties Oversight Board's (PCLOB) report, calling for an end to bulk surveillance collection, confirms that the Pentagon's NSA mass surveillance program, and President Obama's fundamental endorsement of it, does not have a constitutional leg to stand on," Carl Messineo, legal director, said in a prepared statement.

Congressman Mike Rogers (R-Mich.), chairman of the House Intelligence Committee, a strong backer of the NSA data-collection program, questioned the board's activities. "I am disappointed that three members of the Board decided to step well beyond their policy and oversight role and conducted a legal review of a program that has been thoroughly reviewed," Rogers said in a statement provided to eWEEK. "In 38 times over the past seven years, 17 federal judges have examined this issue and found the telephone metadata program to be legal, concluding this program complies with both the statutory text and with the U.S. Constitution."

While the PCLOB report has given privacy-rights advocates much to talk about, that talk doesn't translate into change. The fact is, just as I noted in my column last week, you're going to see few, if any, significant changes as a result of this finding or from the concessions that the president offered last week.


Advisory Board Report Won't Alter NSA Operations Despite Hype

The only difference between the limits announced by the president in his Jan. 17 speech and the board's findings is that the president described his position as bringing change when, in reality, it won't. In the case of the board, the idea that it would change anything was rejected out of hand by all sides.

So if the board's report is dead on arrival, why all the hype? Partly, there's a vain hope among some in Congress and in some journalistic circles that their views of the NSA's alleged wrongdoing might finally be heard. The PCLOB efforts were doomed from the beginning, which is why it took so long to find five people in Washington willing to serve on it.

Another advisory group formed by the president recommended much more limited actions, such as requiring a court order before accessing the collection of phone metadata currently held by the NSA. The president supported that group's recommendations. The Review Group on Intelligence and Communications Technologies, which works under the Director of National Intelligence, solicited public comments prior to issuing its advice to the president.

The Computer & Communications Industry Association, which represents the IT industry itself, welcomed the discussion that was brought by the PCLOB's recommendations. "We are encouraged that this latest report will add to the growing debate after a federal judge and the president's review group also expressed serious misgivings about bulk data collection and other surveillance practices," said CCIA President and CEO Ed Black. "These valuable, independent reviews will help as Congress continues to consider how to reform NSA programs and procedures."

Black noted that while the members of the board did not agree as to the legality of the NSA's data collection, they did all agree that there do not appear to have been any instances in which the data gathering actually prevented a national security threat.

But, on the other hand, as Rep. Mike Rogers noted in his statements, there are no silver bullets when it comes to intelligence gathering. While the data gathering in itself did not prevent any attacks, apparently it was useful in providing confirmation, which is also critically important.

While the PCLOB report represented a great deal of effort, it's clear that the group did not succeed in finding anything that would alter the current course of the administration in its pursuit of data gathering, it may at least open the door to discussion, and that's also important. Just don't expect it to change much any time soon.


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