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Chairman Of Privacy Board Weighs In On NSA

Jan 23, 2014
Originally published on January 24, 2014 3:32 pm
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And I'm joined now by the head of that watchdog group, David Medine. He's chairman of the five-member Privacy and Civil Liberties Oversight Board. Mr. Medine, welcome to the program.

DAVID MEDINE: Thanks. Good afternoon, Melissa.

BLOCK: And let's drill down a little bit more on your most far-reaching conclusion, and that is that you say the government should end its Section 215 bulk telephone records program. End it entirely, you say. But you do point out in your report that you've seen no evidence of bad faith or government misconduct. So if the program hasn't been misused, why end it?

MEDINE: For three reasons. One is that it doesn't meet the requirements of Section 215, the statute that purportedly authorizes it. Second, the program raises significant constitutional concerns under the First and Fourth Amendment. And third, in balancing the privacy interests involved with national security, the board concluded that the program has significant privacy impact, chilling association, chilling reporters talking to sources, chilling dissidents, which are protected under the First Amendment, talking to their followers.

It has a very strong privacy impact. And then when we looked at the efficacy of the program, we found it lacking. It didn't thwart plots. It didn't - it had only marginal benefits that could be achieved through other legal means.

BLOCK: Well, let me follow up on those privacy concerns that you mentioned because you say in your report there's been no evidence of harassment, blackmail or intimidation arising from the data. And you write this: Given the historical abuse of personal information by the government during the 20th century, the risk is more than merely theoretical. So first of all, what are you alluding to? And second, why would that theoretical risk be enough to justify wiping out the program entirely?

MEDINE: Well, we know from the Watergate era there were misuse of data. The Church Committee that was created by Congress looked into abuses. There were abuses of data by the government in the 20th century. And while we didn't find any abuses, we found, in fact, just the opposite, that there are very hardworking men and women in the intelligence community, trying to keep us safe and protecting our civil liberties. But we do it for creating a database like this, it's almost like a time bomb, and maybe it won't go off right now, but it could go off in the future with a different administration that was less well-intentioned.

And, again, given its limited efficacy and significant privacy impact, we recommended that the program be discontinued and that queries either be made to the providers or some other method is figured out to more - to better target the information that they need.

BLOCK: On that question of efficacy, one of the dissenters on your panel, Rachel Brand, wrote that your conclusion that the government has been operating this phone records program unlawfully for years will undermine national security, have a detrimental effect on the NSA, and you can't really judge, she says, you know, the potential benefit in thwarting terrorist attacks.

MEDINE: Well, we took a close look at every single incident where the government said the program was effective and successful and found that in most of those, again, plots were not thwarted. Other methods could've been used to get the information. And, again, we're not saying that there shouldn't be any method of tracking telephone numbers that are potentially involved with terrorists. We're just saying it shouldn't be done by the government gathering every single American citizen's phone call records and hold them for five years at a time.

BLOCK: What about that dissenter, Rachel Brand's argument that the number of records that have ever been viewed is infinitesimal? That's her word. Her conclusion is that the small intrusion on privacy is far outweighed by the potential benefit in thwarting terrorist attacks.

MEDINE: It is true that there are limited use of the information, but it's the mere collection of the information that raises privacy concerns. There are data breaches. There is a history at the NSA of some minor infractions. But obviously, there is a potential for much greater misuse once the data is sitting there. So again, it's really a balance between how useful is the data, versus the potential. Already people feel shrill by making certain calls, knowing that the government is keeping track of them and someday could look at them.

BLOCK: President Obama does seem to have beaten you to the punch on this question. He gave his major speech on NSA reforms last week, before your report came out. And he concluded that the 215 phone records program should stay, with some changes. Did he undercut your work here?

MEDINE: Not at all. In fact, we decided to provide the significant copies of our report, portions of our report, to the president as he was considering his decision-making. And the entire board met with the president, vice president and senior staff at the White House to share our concerns and our recommendations. And I think his recommendations are actually not that far off. He's recommending an interim period, as we do, with added privacy protections, and he's also recommending taking the bulk data out of the NSA.

And so, he may have different reasons, which are more privacy-oriented. Ours are both privacy, constitutional and legal. But in some ways, we end up pointing in the same direction, which is let's get the data out of the NSA and let's figure out an alternative, either going to providers or some better method of targeting information that strikes the right balance.

BLOCK: OK. David Medine, thanks for being with us.

MEDINE: You're welcome.

BLOCK: David Medine is chairman of the independent Privacy and Civil Liberties Oversight Board. They released their report on the government's telephone records program today. Transcript provided by NPR, Copyright NPR.