Government privacy board members say shifting NSA data to third parties is a bad idea

January 23, 2014

President Obama talks about National Security Agency surveillance at the Justice Department in Washington. (AP Photo/Charles Dharapak)

Every member of a government board responsible for advising the government on balancing civil liberties with national security seems to think moving the National Security Agency's (NSA)'s massive database of domestic call records into the hands of a third party -- one of the major changes to the program proposed by President Obama last week -- is a bad idea.

The Privacy and Civil Liberties Oversight Board (PCLOB), an independent executive branch agency modeled on a 9/11 Commission recommendation, released its report Thursday on the NSA's domestic phone records collection program. A three-person majority of the five-person group recommended shutting down that program, which they describe as being without grounding in Section 215 of the USA Patriot Act, the statute upon which it is based.

Although the board shared its conclusions with Obama before his NSA speech, the president did not agree with the group's primary recommendation of ending the program altogether. Instead, Obama announced changes to the nature of the program, including moving telephony metadata out of government hands. While the exact details of that proposed arrangement remain murky, today's report and remarks by the board members signal that none of them think it's a good idea.

In fact, in comments after the public PCLOB meeting, board member James Dempsey expressly called moving the bulk records collections into the hands of a third party a "terrible idea" that raises many of the same issues related to the NSA controlling the data.

Dempsey joined PCLOB Chairman David Medine and fellow member Patricia Wald in voting in favor of recommending a total end to the program.

Medine also dismissed the idea of using a third party, saying, "it just doesn't seem to address the concerns that we've raised."

Wald said she had a "somewhat more flexible attitude" to the idea and would not rule it out, "but for all the reasons that we don't have [a third party] now, I don't see handing [the database] over to somebody we manufactured for that purpose. "

The two members of the board in favor of keeping the phone records program intact, Elizabeth Collins Cook and Rachel Branch, who both served in the Justice Department in the George W. Bush administration, were also unenthusiastic about the president's approach.

In an a statement accompanying the report, Branch wrote, "in my view, it would be wiser to leave the program as it is with the NSA than to transfer it to a third party." In questions after the PCLOB meeting Branch said she wouldn't entirely rule out moving the information to a third party absent a specific proposal but "could not see any possible way that could work" due to questions about the nature of the data, who assumes the liability, and added security concerns. 

Cook laid out her multifaceted objection in a similar statement released with the report, writing "it is not at all clear how a third-party entity to hold the data could be structured in a way that would (a) be an adequate substitute for the Section 215 program and (b) preserve the security of those records, while (c) ameliorating the perceived privacy concerns raised by that program."

Andrea Peterson covers technology policy for The Washington Post, with an emphasis on cybersecurity, consumer privacy, transparency, surveillance and open government.
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