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PCLOB votes 3-2 to call NSA program illegal

According to Charlie Savage at the NYT, the Privacy and Civil Liberties Oversight Board will issue today a report declaring that the NSA’s telephone metadata program is illegal and should be ended. That is the conclusion of the three Democrats on the board; the two Republicans dissented. This is certainly an embarrassment for the administration. So if you were wondering why it took the Obama administration three years to fill the board, you now have the answer.

How does the board get around the fact that the statute was reauthorized by Congress twice after the metadata program began? The story hints at the PCLOB’s view:

Defenders of the program have argued that Congress acquiesced to that secret interpretation of the law by twice extending its expiration without changes. But the report rejects that idea as “both unsupported by legal precedent and unacceptable as a matter of democratic accountability.”

I find it hard to believe that this position withstands analysis but I’ll wait to see the full report.



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Eugene Volokh · January 22, 2014

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