The five-member Privacy and Civil Liberties Oversight Board is expected to release a 238-page report Thursday advocating the termination of the National Security Agency's bulk collection of phone records.
A majority of the independent government watchdog's members found the program "lacks a viable legal foundation under Section 215, implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value," The New York Times reports.
The program's legality has been a bone of contention since exiled whistle-blower Edward Snowden provided Foreign Intelligence Surveillance Court documents to journalist Glenn Greenwald, exposing the dragnet collection of records to the public in June.
Critics of the 7-year-old program say it wasn't authorized by the Patriot Act and say the 15 FISC judges who authorized the program used a generous interpretation of the post-9/11 law, blatantly violating Americans' Fourth Amendment rights and chilling First Amendnment-protected free speech in the process. Patriot Act author Rep. Jim Sensenbrenner, R-Wis., said as much after the initial Snowden disclosures.
"As I have said numerous times, I did not know the administration was using the Patriot Act for bulk collection, and neither did a majority of my colleagues," Sensenbrenner wrote in an Aug. 19 op-ed in the Los Angeles Times.
The three members who backed the finding of illegality are Patricia Wald, a retired federal appeals court judge; PCLOB Chairman David Medine, formerly of the Federal Trade Commission; and James Dempsey of the Center for Democracy & Technology, The Washington Post reports.
The two members who dissented from that conclusion are former Justice Department employees Rachel Brand and Elisebeth Cook.
All five agreed to various intermediary recommendations, including reducing the storage of records from five to three years and erring against the possibility of phone companies extending their storage time for records as part of ending the NSA's in-house data storage.
President Barack Obama announced Jan. 17 he was ordering a 60-day review of how to best outsource the NSA's phone-record collection program.
Three major lawsuits are pending against the program and Sen. Rand Paul, R-Ky., intends to file a fourt.
U.S. District Court Judge Richard Leon ruled Dec. 16 the program "almost certain" violates the Fourth Amendment in response to a lawsuit brought by conservative activist Larry Klayman, but U.S. District Court Judge William Pauley found the program "lawful" Dec. 27 and dismissed a challenge filed by the American Civil Liberties Union. Both decisions are being appealed.
In addition to disputes over the program's legality, there are disagreements about its utility.
The PCLOB members found that "[e]ven in cases where the data related to contacts of a known terrorism suspect, in nearly all of them the benefits were minimal" and that those benefits were "generally limited to corroborating information that was obtained independently by the FBI," according to an excerpt published by the Post.
That's in line with the conclusion of anti-surveillance lawmakers, such as Sen. Patrick Leahy, D-Vt., and Leon, but at odds with the position of the president, administration officials and pro-surveillance lawmakers who say the program has been useful in preventing terrorism. A five-member White House panel said in its December report the phone program has not yet been essestial to that purpose.