The program considered so “essential” NSA defenders said it couldn’t even be slightly modified is apparently no longer in use. During a recent Lawfare podcast, national security advisor Luke Murry dropped a bit of a bombshell. Charlie Savage summarizes Murry’s comments:
The National Security Agency has quietly shut down a system that analyzes logs of Americans’ domestic calls and texts, according to a senior Republican congressional aide, halting a program that has touched off disputes about privacy and the rule of law since the Sept. 11 attacks.
Mr. Murry brought up the pending expiration of the Freedom Act, but then disclosed that the Trump administration “hasn’t actually been using it for the past six months.”
“I’m actually not certain that the administration will want to start that back up,” Mr. Murry said.
Murry is referring to the Section 215 bulk data collection. Exposed by the Snowden leaks, Section 215 was modified by the USA Freedom Act, which went into effect June 2015. The biggest modification was where the records were stored. The NSA could no longer collect all phone records from providers and search through the data at its leisure. Instead, it had to provide telcos with lists of targeted numbers. The data remained in the hands of service providers, with the NSA only having access to suspicion-supported phone records.
The alterations to the Section 215 program resulted in the NSA purging a bunch of records that didn’t fit the new parameters. The NSA finally let go of a few of its haystacks, conveniently destroying records integral to multiple lawsuits against the agency. The USA Freedom Act modifications — combined with the NSA’s long history of abusing its collection authorities — seem to have made it impossible for the NSA to continue utilizing its phone records collection program.
The bulk records collection is now in the hands of telcos, resulting in a slimmed-down dataset the NSA didn’t seem particularly enthused to have. Apparently the program is as useless as critics have said it is. The NSA has gone at least six months without asking for data via this authority. This program is due for renewal at the end of this year, but the comments made to Lawfare suggest the NSA may be content to let it expire.
Marcy Wheeler suggests a few underlying motivations for the NSA’s abandonment of the Section 215 collection — and one might be the Supreme Court’s extension of Fourth Amendment protections to cell site location info.
[This] suggests that the problem with the records may not be the volume or the content turned over, but some problem created either by the specific language of the law or (more likely) the House Report on it or by the Carpenter decision. Carpenter came out on June 22, so technically after the NSA claims to have started deleting records on May 23. It also may be that the the NSA realized something was non-compliant with its collection just as it was submitting the 6th set of 180-day applications, and didn’t want to admit to the FISC that it had been breaking the law (which is precisely what happened in 2011 when the government deleted all its PRTT records).
Wheeler says the NSA may have been asking for location data as well to better track the phones it targeted. The IC may have seen the writing on the third-party wall following the Supreme Court’s oral arguments in November 2017. This may account for its plug-pulling a month ahead of the decision’s release.
Or it may be something far less respectful of the Constitution. It could be the NSA has found another way to collect this same data without having to run it by the newly-adversarial FISA court. As Wheeler points out, Section 215 may have been restricted but the powers granted by Executive Order 12333 continue to expand.
Whatever the real motivation, it appears the domestic surveillance program that never prevented a terrorist attack will continue to never prevent terrorist attacks. The upside is we may not be throwing any more tax dollars at a national security program that adds nothing to our nation’s security.
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