House Dems Deal Death Blow to Domestic NSA Phone Spying

Eighteen years after George W. Bush and the National Security Agency began secretly and warrantlessly collecting the phone records of every American, the House of Representatives is taking a major step to kill the vestige of one of the most controversial domestic surveillance programs in American history. That step, The Daily Beast has learned, is: nothing. In barely a month, a failed 2015 surveillance law called the USA FREEDOM Act will expire. USA FREEDOM set up a process to let the NSA obtain and query mass amounts of phone data—the phone numbers a surveillance target dialed and received, as well as all those that target was in touch with, and then all those they were in touch with—held by the telecommunications firms.
But in 2018, after collecting over half a trillion such records, all without a warrant, the NSA purged its entire trove of what’s known as “Call Detail Records” after an over-collection so substantial the Fort Meade surveillance giant could not determine which of those records it obtained legally. The NSA shut the program down. Its director, Gen. Paul Nakasone, equivocated over restarting it. But by August, President Donald Trump—who considers surveillance on his allies, obtained through a warrant, an abuse of power—decided he wanted to keep the Call Detail Records program after all. Congressional officials tell The Daily Beast that won’t happen. A forthcoming bill from the House judiciary and intelligence committees will reauthorize three other surveillance measures set to expire, but will not permit the Call Detail Records program to survive. With expiration set for Dec. 15, whatever the Senate does the Call Detail Records program, barring some eleventh-hour legislative chicanery, looks like the rarest of birds: a post-9/11 surveillance activity on course for extinction.
“We would not be in this position today if Edward Snowden had not revealed the bulk collection program,” said Liza Goitein of the Brennan Center for Justice.For civil libertarians, however, it’s a necessary but insufficient step. In March, a coalition of privacy advocates wrote to the House judiciary committee urging it not only to jettison the Call Data Records program but to disclose the role of racial, religious and other profiling in surveillance targeting; provide notification to criminal defendants of the role PATRIOT Act surveillance played in their prosecutions; and to finally reveal how many Americans have had their internet data siphoned into the NSA’s warrantless dragnets. “Is Congress going to recognize and tackle these issues, or look the other way and pretend they’ve handled the situation?” asked Goitein.
Trump’s surveillance hypocrisy should come as no surprise. He backed the renewal of an even less restrained passel of internet surveillance authorities, known as Section 702, while mischaracterizing it as a tool to “so badly surveil and abuse the Trump Campaign.” In truth, like the Call Detail Records program, Section 702 surveils and abuses millions of Americans, but not specifically Donald Trump. Nakasone’s equivocation, during a public appearance in March, reflected discomfort within NSA with keeping Call Detail Records, a compromise imposed on it by Congress after Edward Snowden and the Guardian exposed the bulk domestic phone-records surveillance program put in place after 9/11. In Senate testimony on Wednesday, an NSA official, Susan Morgan, conspicuously referred to the “administration’s” decision to seek renewal, rather than NSA’s.

“We would not be in this position today if Edward Snowden had not revealed the bulk collection program.”

— Liza Goitein of the Brennan Center for Justice.Still, Morgan, an NSA expert on Call Detail Records, ran into a headwind of opposition in a friendly forum. Several members of the Senate judiciary committee, both majority Republicans and minority Democrats, expressed frustration with Morgan’s refusal to answer basic questions about what she called an ‘important provision.” Morgan said classification rules prevented her from saying, among other things, if the Call Detail Records program materially contributed to the prevention of any terrorism—something Sen. Patrick Leahy (D-VT) pointed out did not stop NSA during its frequent assurances that Section 702 surveillance has disrupted terrorist attacks.
Nor could Morgan affirm, when asked directly, that the NSA had fixed the technical aspects of the Call Detail Records program that contributed to the mass over-collection. Adam Klein, the head of the government’s Privacy and Civil Liberties Oversight Board, told senators that he had completed a study of what went wrong with the program, though it remains unclear if it will be declassified ahead of the Dec. 15 expiration of the authority.

But the looming end of one surveillance activity does not herald a broader dismantlement of the entrenched government apparatus of post-9/11 mass data collection.

Three provisions of the PATRIOT Act are also expiring on Dec. 15, but none of them are in jeopardy. The Business Records provision permits the FBI to collect records—“tangible things” like library checkouts, medical information, hotel stays and so on—about an investigative target from the firms and service providers that create them. From May 2006 until the USA FREEDOM Act in June 2015, the Business Records provision operated as secret legal cover for the bulk collection of Americans’ phone data.
In addition, PATRIOT’s roving-wiretap provision carries over subpoenas on an intelligence target across their multiple telephonic and digital accounts. Finally, its “lone wolf” provision provides surveillance authority against people suspected of terrorism but not part of any designated foreign terrorist entity. Not once in 18 years of existence has the FBI used that authority, FBI counterterrorism official Michael Orlando reaffirmed on Wednesday, as it exempts American citizens and legal permanent residents.
The House Democrats’ measure that sacrifices Call Detail Records retains these three PATRIOT authorities as a bargain for passage. Deep political consensus exists across both parties for an expansion of the domestic surveillance state—once an emergency measure, now a seemingly permanent feature of American life, even as Congress jettisons one of its most extreme manifestations. “Ending the [Call Data Records] authority is absolutely necessary, but Congress needs to do much more than ending a dysfunctional system that the NSA can’t provide any justification for,” said Jake Laperruque of the Project on Government Oversight. “Any reauthorization bill has to include a broad set of serious reforms. You don't get a five star restaurant review just by taking arsenic off the menu.”

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