What the end of the NSA’s bulk phone record collection really means

Dec 2, 2015 | Civil Liberties, Military-Industrial Complex/Security State, Terrorism

Published: The Daily Dot (December 2, 2015)

It’s official: The NSA was legally required to terminate its bulk phone record collection program this week. That may not provide much comfort if you happen to use the Internet (and particularly if you communicate using social media)—but it’s a major win worth acknowledging.

If you’re wondering why the government can still monitor what you do online but can’t access your phone records (at least not without permission from your cellular service provider), the reason is a little complicated. Although the National Security Agency has collected phone records since terrorist attacks on Sept. 11, 2001, the public wasn’t made aware of this practice until the Edward Snowden leaks almost 12 years later. Shortly thereafter, the American Civil Liberties Union filed a lawsuitclaiming that the program was unconstitutional, resulting in a two-year legal battle that ended when an appeals court ruled that the NSA’s actions were indeed unjustified.

“Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans,” explained Circuit Judge Gerard Lynch. “We would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language. There is no evidence of such a debate.”

Within weeks of this decision, the Senate failed to pass a bill (the USA Freedom Act) that would have reauthorized and reformed Section 215 of the USA Patriot Act, which had been provided the NSA with a tentative legal foundation for their surveillance activities. Although a separate bill was passed in the summer allowing the NSA a 180-day transition period, the clock finally ran out on the illegal phone collections last week, with the Justice Department announcing that “final temporary reauthorization of the Section 215 bulk telephone metadata program in the U.S.” had expired.

That said, neither the circuit court ruling nor Congress’s various measures (or lack thereof) has any impact on NSA spying besides monitoring and collecting cellular phone data. One program that will remain untouched is PRISM, the notoriously secret initiative implemented in 2007 that empowered the NSA to collaborate with the FBI to directly access user data from major tech companies like Apple,Microsoft, Google, Yahoo, Facebook, AOL, Skype, and YouTube. Today, information acquired through PRISM accounts for one out of every seven intelligence reports. Moreover, as The New York Times discovered less than two weeks ago, the NSA managed to develop alternative methods for acquiring online data after a different surveillance program (known as Stellarwind) was forced to shut down.

Making matters worse, many experts believe the NSA has loopholes aside from Section 215 that it could utilize to allow even more expansive online spying—or a return to phone data collection. For example, Section 702 of the FISA Amendments Act allows the government to gather intelligence on non-citizens that the government argues can be “reasonably believed” to be outside the United States.

Despite the inclusion of “minimization procedures” to prevent the unintentional acquisition of information about U.S. persons, many civil liberties groups are concerned because the NSA frequently refuses to disclose how it received information that it later uses to build its cases. As Hanni Fakhoury of the Electronic Frontiers Foundations wrote last year: “FISA surveillance was originally supposed to be used only in certain specific, authorized national security investigations, but information sharing rules implemented after 9/11 allows the NSA to hand over information to traditional domestic law-enforcement agencies, without any connection to terrorism or national security investigations.”

Another loophole exists in the form of Executive Order 12333, which was issued by President Ronald Reagan in 1981. Ostensibly created so that “all reasonable and lawful means must be used to ensure that the United States will receive the best intelligence possible,” Executive Order 12333 grants broad powers to intelligence gathering agencies when it comes to how they perform their duties. “Unlike Section 215, the executive order authorizes collection of the content of communications, not just metadata, even for U.S. persons,” wrote former State Department employee John Napier Tye, who specializes in Internet freedom issues, in a Letter to the Editor at the Washington Post last year.

Although people in the United States cannot be intentionally targeted without a court order, Tye points out: “[I]f the contents of a U.S. person’s communications are ‘incidentally’ collected (an NSA term of art) in the course of a lawful overseas foreign intelligence investigation, then Section 2.3(c) of the executive order explicitly authorizes their retention. It does not require that the affected U.S. persons be suspected of wrongdoing and places no limits on the volume of communications by U.S. persons that may be collected and retained.”

None of this means that the expiration of the NSA’s phone record collection program should be dismissed. As the ACLU noted, the mere fact that the NSA suffered any kind of setback is in its own right significant. Staff attorney Alex Abdo pointed out that “this historic victory represents the first time that Congress has scaled back the NSA’s surveillance of Americans since 1978.” Just as importantly, it reveals that ordinary citizens who use the Internet to inform their fellow citizens of controversial government activities still have the power to make a difference—not merely by spreading information, but by ultimately influencing public policy.

At the same time, this is an issue that requires a nuanced reaction rather than a blanketed one. Just as it would be myopic to diminish the importance of what has already been done, so too is it naive to overlook the considerable work that remains. Because PRISM still allows the government to collect personal information on the Internet, and various loopholes could potentially permit a return to phone spying as well, the past could very well repeat itself. Although part of the unprecedented surveillance program exposed by Snowden has been dismantled, an even larger part of it remains untouched.

In a sense, the NSA scandal could be viewed as a metaphor for the complex times we occupy today. Tempting though it may be to react to certain news stories with either an overwhelmingly positive or negative response, the truth is that many of our nation’s biggest problems can’t be solved in one fell swoop. As a result, the only effective way to fully confront these issues is to simultaneously appreciate the significance of progress when it is made—while always remaining mindful when it still isn’t nearly enough.