On March 5th, The Wall Street Journal wrote that the US National Security Agency is presently considering ending a once secret telephone metadata gathering program that was originally authorized under the Patriot Act. The practice was exposed publicly in 2013 by former intelligence contractor Edward Snowden, currently a fugitive from the US living in Russia.
That program made use of the collection of “metadata”, which are the data that precedes, parallels and ends calls made on the Public Switched Telephone Network (PSTN) and also the multiple cellular phone networks operating in the USA and around the world.
The controversy around such surveillance had been raised before, but its visibility spiked when Mr. Snowden broke news that the NSA was conducting sophisticated data-gathering operations not just on foreign nationals, but on Americans, and often for no legitimate reasons connected to any efforts against terrorism.
When Mr. Snowden revealed it, the Obama Administration and Congress were forced to pass the USA Freedom act in 2015, which required the NSA to change the way it got its metadata, and it drastically reduced the amount of data that the Agency could gather. It also bound the NSA to the requirement of gaining such records only on a need-to-know basis request to the telephone companies.
However the cancellation of this program appears to be the result of attrition of use rather than a shift in policy direction. The Journal reports:
The National Security Agency is considering ending a once-secret surveillance program that annually collects hundreds of millions of telephone call records, including those belonging to Americans, because it lacks operational value, according to people familiar with the matter.
…Luke Murry, a national-security adviser for Republican congressional leadership, said in a recent podcast interview with the Lawfare security blog that the NSA hadn’t used the program in the past six months and might not seek its renewal when portions of the Patriot Act that authorize it expire at the end of the year.
The point of interest for the Journal is that terminating this program would represent quite a large concession from the NSA, because they formerly fiercely defended the use and collection of such metadata as vital to national security.
Neither the NSA, nor Mr. Snowden, nor the Trump Administration have offered any further comment on the status or future of this surveillance program. However, portions of the Patriot Act are due to expire at the end of 2019, including the section of the law that authorizes the metadata program. With debate on the Act not expected to begin until the fall of this year, the future of the program remains to be seen.
A companion piece by The Washington Examiner opened that the Congress ought to end the NSA’s collection of metadata. This piece also points at the fact that the program has not been deployed for use in the last six months, according to a congressional aide who spoke about this possibility. It further connected the non-use of this program to possible policy decisions within the Trump Administration, saying:
…Just last June , for example, the NSA acknowledged that it had stored millions of records illegally and that it was now working on destroying records it did not have authority to have.
But over the weekend, Luke Murry, national security adviser to House Minority Leader Rep. Kevin McCarthy, R-Calif., told the Lawfare podcast that the data collection had ended if it was still legally allowed, explaining that the Trump administration “hasn’t actually been using it for the past six months.” And he also added, “I’m actually not certain that the administration will want to start that back up.”
That’s welcome news. If Murry’s account is accurate, then President Trump has done what his predecessor would not, and the end of the collection of data does indeed seem likely. After all, it is much harder to justify restarting an already-halted program than merely to justify the continuation of existing practices. Moreover, the pause underscores that the program has done little if anything to actually thwart terrorist attacks. That could be the last straw for congressional support.
But Congress must not complacently reauthorize the collection of this data when the Freedom Act expires later this year. Just because the program is rumored to be on hold doesn’t mean that the NSA couldn’t decide to start collecting that data again. The safeguarding of rights requires constant vigilance.