A Year After Reform Push, NSA Still Collects Bulk Domestic Data, Still Lacks Way to Assess Value

The presidential advisory board on privacy that recommended a slew of domestic surveillance reforms in the wake of the Edward Snowden revelations reported today that many of its suggestions have been agreed to “in principle” by the Obama administration, but in practice, very little has changed.

Most notably, the Privacy and Civil Liberties Oversight Board called attention to the obvious fact that one full year after it concluded that the government’s bulk collection of metadata on domestic telephone calls is illegal and unproductive, the program continues apace.

“The Administration accepted our recommendation in principle. However, it has not ended the bulk telephone records program on its own, opting instead to seek legislation to create an alternative to the existing program,” the report notes.

And while Congress has variously debated, proposed, neutered, and failed to agree on any action, the report’s authors point the finger of blame squarely at President Obama. “It should be noted that the Administration can end the bulk telephone records program at any time, without congressional involvement,” the report says.

Obama said a year ago that he favored an end to the government collection of those records if an alternative — such as keeping the records at the telephone companies, or with a third party — still allowed them to be searchable by the government. The White House was recently said to be “still considering” the matter.

The board noted that Obama has accepted some, but not all, of the privacy safeguards it recommended — somewhat reducing the ease and depth with which National Security Agency agents can dig through the domestic data, but not, for instance, agreeing to delete the data after three years, instead of five.

A year ago, the board also recommended that Congress enact legislation enabling the secretive Foreign Intelligence Surveillance Court, which currently approves both specific and blanket warrant applications without allowing anyone to argue otherwise, to hear independent views. It recommended more appellate reviews of that court’s rulings.

There’s been no progress on either front.

A year ago, the board recommended that “the scope of surveillance authorities affecting Americans should be public,” and that the intelligence community should “develop principles and criteria for the public articulation of the legal authorities under which it conducts surveillance affecting Americans.”

Something is apparently brewing in that area, but it’s not entirely clear what. “Intelligence Community representatives have advised us that they are committed to implementing this recommendation,” with principles “that they will soon be releasing,” the report says.

The privacy board’s second report, on the collection of international telephone and Internet content, came out just six months ago, and was considerably more disappointing to civil libertarians than its report on domestic collection. Most of its recommendations involved tweaks, and are either being implemented or “awaiting implementation,” the board reported.

But one recommendation in particular – that the intelligence community develop some sort of methodology to assess whether any of this stuff is actually doing any good — has been notably “not implemented.”

“Determining the efficacy and value of particular counterterrorism programs is critical,” the board says. “Without such determinations, policymakers and courts cannot effectively weigh the interests of the government in conducting a program against the intrusions on privacy and civil liberties that it may cause.”

White House photo of PCLOB meeting with Obama in June 2013