LAWFARE
January 7, 2016
Glenn S. Gerstell is the General Counsel of the National Security Agency.
Late last year, a judge of the Foreign Intelligence Surveillance Court gave the green light to the National Security Agency to start using a new tool to help the government protect against international terrorism while balancing the legitimate need to protect privacy and civil liberties. The USA FREEDOM Act, passed by Congress last June, ended the government’s ability to collect information about Americans’ phone calls in bulk under Section 215 of the USA PATRIOT Act, and replaced it with a new arrangement – initiated with court approval on Nov. 30 – that is intended to assist our nation in fighting international terrorists without the government holding the bulk metadata.
In order to better understand the new Act, let us first look at some history and address some misperceptions – a discussion now even more timely in light of the terrible attacks at the end of last year. Spurred by the horrors of 9/11, Congress in 2001 amended a 1970s-era statute, the Foreign Intelligence Surveillance Act (FISA), in the hope of addressing perceived gaps in the federal government’s intelligence collection authority. But it was not until 2006 that the government used provisions in those FISA amendments, with the approval of the special court established under FISA, to compel telephone companies to deliver to NSA records about their customers’ phone calls. The records were information traditionally used by the phone companies for billing purposes – including the time and date of a call, which number was called, and the duration, but not the content of the call or the identity or location of any of the parties to the call.
The way the program (often referred to as the “Section 215” program after the provision in the statute) worked, in simple terms, was that NSA would collect the records and search them to see with whom a suspected international terrorist had been in telephone contact, including individuals inside the United States. When NSA identified additional contacts, it provided these tips to the FBI. In certain instances, the tips have provided valuable information in FBI terror plot investigations.
Although the program had built-in safeguards and limits, when its existence and extent were leaked in 2013, controversy erupted over the scope of government surveillance and privacy rights. Often lost in those discussions was the fact that the actual content of any telephone conversation was never collected under this program, so the more sensationalist claims that the NSA was eavesdropping on your calls to grandma were flat wrong.
Critics nonetheless asserted that the program infringed privacy rights and didn’t comply with the statute since Americans’ phone records were being turned over to NSA in bulk, without a showing that any particular individual’s records were relevant to an investigation. The highest court to consider the various challenges to the Section 215 program, the federal Court of Appeals for the Second Circuit, decided last year that the program exceeded the scope of what Congress had authorized, although it didn’t take up the claim that the program violated the Constitution’s ban on unreasonable searches and seizures under the Fourth Amendment. Defenders of the program, however, asserted with equal fervor that it struck the right balance between intelligence needs and privacy, and that the program was a necessary information tool for national security. On their side was a 1979 Supreme Court ruling (Smith v. Maryland) that said, in essence, that there was no constitutionally protected privacy right in the phone numbers you dial, since you voluntarily give that information to the phone company.
Several independent organizations have also considered the issue of bulk collection of phone call records. Although the Privacy and Civil Liberties Oversight Board recommended that the government completely end the Section 215 program after a wind-down period, the National Academy of Sciences concluded that given the foreign intelligence requirements, there was no technical equivalent to collecting the phone call records – or “telephony metadata” – in bulk.
In March 2014, based on a recommendation from the Director of National Intelligence and the Attorney General, the President announced that he would seek legislation to preserve the program’s essential national security capabilities, while better protecting the privacy and civil liberties of all Americans. After much debate, Congress adopted in June the USA FREEDOM Act, which established a revised procedure, and which became operational on Nov. 30.
Under the new arrangement, the phone companies, not NSA, continue to retain their phone call records. The FBI (on behalf of NSA) can apply to the FISA Court for specific authority to inquire about a particular phone number or other identifying element, but only if based on a “reasonable, articulable suspicion” that it is associated with international terrorism. The phone company will reply with a list of numbers, if any, that the first number was in contact with. NSA is then permitted to perform a similar inquiry on the secondary numbers – but cannot further investigate the results of the second inquiry to see subsequent levels of contact. And under no circumstances does NSA get access to the content of any calls under this arrangement. The information obtained through this legal process – U.S. telephone numbers that might have been in contact with foreign terrorists – can serve as a basis for further investigation by the FBI, and is important at a time when foreign terrorist organizations are trying to recruit Americans to commit acts of terror in the United States.
Although the FISA Court proceedings must be secret due to the classified nature of the intelligence information, the Court may disclose its opinions involving significant or novel interpretations of the law. Moreover, the phone companies may periodically report the number of government inquiries and, under the statute, the entire arrangement continues to be subject to oversight and detailed reporting to the Department of Justice, the FISA Court, and Congress. In short, the public will now get a better idea of the frequency and scope of these individual inquiries, and the targeted nature of the inquiries and the extensive oversight should go a long way to allaying privacy concerns.
It’s no surprise that many people are sensitive about the digital footprints they leave through their everyday activities, especially with the central and expanding role of smart phones. To be clear, information beyond telephony metadata – such as web browsing, picture sharing, and online purchases – are in no way part of the information provided by phone companies under the new statute. And it’s equally no surprise – especially with the horrific events in Paris and San Bernardino in mind – that many feel we cannot deprive ourselves of any reasonable tool to maintain our nation’s safety. Indeed, some are concerned that the new process required under the USA FREEDOM Act for querying telephone records might be too cumbersome to be effective. NSA will in due course, as it gains experience with the new process, report to Congress about the efficiency of the new arrangement. NSA is confident, however, that it can operate the new scheme in compliance with the law, while still obtaining information necessary to help protect our country, and it believes that the country’s telephone companies will similarly fulfill their roles under the new statute. Largely overlooked in the debate that has ensued in the wake of recent attacks is the fact that under the new arrangement, our national security professionals will have access to a greater volume of call records subject to query in a way that is consistent with our regard for civil liberties.
As President Obama made clear at the time of the USA FREEDOM Act’s adoption, we must “ensure our national security professionals again have the full set of vital tools they need to continue protecting the country. Just as important,… [the Act] will strengthen civil liberty safeguards and provide greater public confidence in these programs.” Intelligence work involves putting together a mosaic of information, gathered from multiple sources. We never know which tool or combination of tools may uncover a critical piece of that puzzle. In November, this new tool was added to the mix together with the hope that all of our resources will continue to keep the nation safe.
This OpEd was originally published at LAWFARE, January 7, 2016.