Advisory Board Report Won't Alter NSA Operations Despite Hype

NEWS ANALYSIS: The Privacy and Civil Liberties Oversight Board report that condemns unrestricted collection of phone metadata as unconstitutional has no chance of changing NSA operations.

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.

Wayne Rash

Wayne Rash

Wayne Rash is a freelance writer and editor with a 35 year history covering technology. He’s a frequent speaker on business, technology issues and enterprise computing. He covers Washington and...