What Congress gets wrong about NSA surveillance practices

[Commentary] The heated debate in Congress about whether to reauthorize Section 215 of the Patriot Act has focused mainly on the National Security Agency's bulk collection of telephone records ever since details of that program were leaked to the press. As a member of the Privacy and Civil Liberties Oversight Board, an independent federal oversight agency, I extensively reviewed that program, including still-classified information about how it works. I believe it is critical that whatever Congress decides, this debate should be based on solid facts rather than rhetoric.

Many important facts and considerations have, unfortunately, not received sufficient attention.

• First, the question before Congress is not whether to reauthorize or prohibit the bulk telephone records program that has garnered so much attention. It is whether to reauthorize Section 215 itself.
• While it has been argued that the USA Freedom Act would both preserve the program’s core and mitigate privacy concerns by moving the storage of data from the government to the telephone companies, there are real questions about whether it would either preserve the program or protect privacy.

[Brand is a member of the US Privacy and Civil Liberties Oversight Board. Previously, Brand served as assistant attorney general for legal policy and as an associate counsel to President George W. Bush.]