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What They’re Not Telling Us About Telephone Records Collections

The Obama administration released a white paper explaining the legal basis for the government’s collection of information about all Americans’ phone calls — a paper that raises more questions than it answers.

Published: August 26, 2013

Cross­pos­ted in the National Law Journal.

The Obama admin­is­tra­tion released a white paper on August 9 about its tele­phone metadata collec­tion program. The paper is supposed to explain the legal basis for the govern­ment’s collec­tion of inform­a­tion about all Amer­ic­ans’ phone calls. Ulti­mately, the paper raises more ques­tions than it answers.

We already knew the program was ostens­ibly author­ized by the Patriot Act. We knew the secret­ive Foreign Intel­li­gence Surveil­lance Court issues regu­lar orders to the major phone carri­ers, direct­ing them to send inform­a­tion about every single phone call made in this coun­try — time, length, recip­i­ent — to the National Secur­ity Agency at the end of every day.

But what we don’t know may be more telling.

First, what else is the govern­ment gath­er­ing in bulk? The paper asserts that phone metadata are collec­ted because the NSA can analyze them to tease out previ­ously unknown asso­ci­ations, but that other types of personal inform­a­tion — medical and library records — are not collec­ted in bulk because those broad-scale analyt­ical tools do not apply. One category is conspicu­ously omit­ted: credit card records, which the Wall Street Journal has repor­ted the NSA is gath­er­ing as well.

While the govern­ment has cryptic­ally denied these reports, the refut­a­tion may cover only the NSA — whose mandate is limited to analyz­ing commu­nic­a­tions inform­a­tion — and not other agen­cies. Section 215 of the Patriot Act does permit requests for credit card records, and the IRS has reportedly been apply­ing “big data” analyt­ical meth­ods to bulk credit card data­bases.

Moreover, Senator Ron Wyden, a member of the Senate Intel­li­gence Commit­tee who has warned about the Amer­ican surveil­lance state, has mentioned credit card records multiple times in speeches about the govern­ment’s author­ity under the Patriot Act.

Second, why is the govern­ment using Section 215 to collect prospect­ive tele­phone records, instead of so-called pen register and trap-and-trace orders? These orders also allow the govern­ment to obtain inform­a­tion about phone calls without record­ing the content of the calls. Changes in the Patriot Act made them consid­er­ably easier to obtain for foreign intel­li­gence inform­a­tion. Perhaps the govern­ment concluded they were too narrow to allow for bulk collec­tion (despite evid­ence they have been used for whole­sale collec­tion of Inter­net metadata), or perhaps the limit­a­tions on their renewal or the use of the inform­a­tion obtained was too restrict­ive. Regard­less, Congress set out a clear stat­utory path for intel­li­gence agen­cies to obtain this type of inform­a­tion. Why did the admin­is­tra­tion reject it in favor of Section 215?

Third, what exactly has Congress know­ingly approved? The paper argues that Congress was “on notice” about the program and “had access to inform­a­tion” when it reau­thor­ized the Patriot Act. Current members of Congress and former staff have strenu­ously disagreed. One repres­ent­at­ive has even accused the House Intel­li­gence Commit­tee of having with­held a key docu­ment from the 2010 House fresh­man class, call­ing into ques­tion the found­a­tion of a recently declas­si­fied memor­andum from the director of national intel­li­gence — an alleg­a­tion the white paper seems to impli­citly acknow­ledge. And even the author of the Patriot Act has said that the current inter­pret­a­tion is at odds with the intent of the stat­ute. It is an open ques­tion whether our elec­ted repres­ent­at­ives knew exactly what they were approv­ing when they reau­thor­ized the law — and, regard­less, they had no way of openly debat­ing the clas­si­fied program.

Fourth, how many elements of the stat­ute is the govern­ment read­ing broadly? Section 215 allows the govern­ment to obtain mater­i­als that are “relev­ant” to a coun­ter­in­tel­li­gence or coun­terter­ror­ism invest­ig­a­tion. The inter­pret­a­tion of “relev­ance” has been the subject of signi­fic­ant skep­ti­cism, and we await the full legal reas­on­ing. The govern­ment may be play­ing fast and loose with “invest­ig­a­tion,” as well. Under the stat­ute, an order can be issued only as part of an “author­ized invest­ig­a­tion.” The white paper gives this stat­utory language a surpris­ing gloss: The docu­ments can include “inform­a­tion relev­ant to the invest­ig­at­ive process,” and the FBI is not limited to records that bear on a partic­u­lar “terror­ist plot or national secur­ity threat.” Need the metadata only be relev­ant to some aspect of a possible future invest­ig­a­tion?

Finally, has this sweep­ing program added appre­ciably to Amer­ic­ans’ safety? The white paper says that the NSA’s analysis of tele­phone metadata “can” contrib­ute to prevent­ing terror­ist attacks. But senat­ors Wyden and Mark Udall, also a member of the Senate Intel­li­gence Commit­tee, have said that no terror­ist attacks have been thwarted by this author­ity.

Follow­ing his own review of clas­si­fied mater­i­als, Senator Patrick Leahy raised similar concerns. Even the deputy director of the NSA has said that the program made key contri­bu­tions to disrupt­ing, at most, one terror plot, but he did not explain whether a more narrowly targeted program could have done the same. If the program is effect­ive, its intru­sions on privacy may still be too great. But if it is not valu­able, the conver­sa­tion should surely end there.

The admin­is­tra­tion may be trying to make good on its prom­ises of trans­par­ency. But it has a long way to go. Answer­ing these ques­tions would be a first step.

Reprin­ted with permis­sion from the August 26 edition of the National Law Journal © 2013 ALM Media Prop­er­ties, LLC. All rights reserved. Further duplic­a­tion without permis­sion is prohib­ited. ALMRe­prints.com – 877–257–3382 – reprint­s@alm.com.

Photo by me and the sysop.