Who Can Control NSA Surveillance?

By Mattathias Schwartz, The New Yorker

25 January 15

resident Obama spent only a few moments of his State of the Union this week talking about the National Security Agency and civil liberties. A year before, he’d promised to “end” Section 215, the N.S.A.’s most controversial surveillance program, “as it currently exists.” In his speech last Tuesday, he said almost nothing concrete, aside from mentioning a forthcoming report “on how we’re keeping our promise to keep our country safe while strengthening privacy.”

Since Edward Snowden revealed the extent of the N.S.A.’s activities in the summer of 2013, there have been a number of official reports on the troubled relationship between surveillance and privacy—one from the President’s Review Group, two from the Privacy and Civil Liberties Oversight Board, and another, last week, from the National Academy of Sciences. In August, 2013, the Office of the Director of National Intelligence started a Tumblr, on which they’ve posted many interesting and useful documents, including redacted orders from the secret Foreign Intelligence Surveillance Court (FISA).

But, while the government has made some moves toward transparency about its surveillance programs, it has enacted few substantial reforms of them. The N.S.A. continues to use Section 215, named after a part of the Patriot Act, to collect metadata on hundreds of billions of U.S. phone calls. Obama has talked about moving the data to some third party. Congress has talked about more serious reforms, including an independent advocate who would represent privacy concerns before the FISA court. But the most significant reform that has been undertaken as the result of an order from Obama is a reduction in the scope of metadata searches, from three “hops,” or degrees of association, to two.

There isn’t much evidence to suggest that Section 215 helps catch the most dangerous terrorists, like those who committed the attacks in Paris two weeks ago. It may even slow investigators down, by eating up resources and generating extraneous leads. (I wrote about Section 215’s track record in this week’s magazine.) Nevertheless, opponents of N.S.A. reform continue to claim that Section 215 can stop violent terrorists. Last week, House Speaker John Boehner, of Ohio, said that information collected from phone records helped halt a plot to bomb the U.S. Capitol, despite the fact that, as the Guardian reported, the F.B.I. has indicated that the critical information came from a government informant. “The first thing that strikes me is that we would’ve never known about this had it not been for the FISA program and our ability to collect information for people who pose an imminent threat,” Boehner told Politico.

When Obama and Congress talk about N.S.A. reform, they’re mostly talking about Section 215. But what other classified surveillance programs are out there? The difficulty of answering this question was made clear last week, when the Drug Enforcement Administration revealed in a court filing that it had maintained a database of calls made from U.S. phone numbers to and from overseas callers. The D.E.A. held the database under a law ostensibly related to administrative subpoenas, not metadata, and used it in criminal drug-trafficking investigations, not counterterrorism activities. Despite the apparent lack of a connection to terrorism, all the D.E.A. needed to search the database was a “reasonable articulable suspicion,” a lower standard of evidence than probable cause that is most often associated with counterterrorism and counterintelligence programs. According to the D.E.A. filings, the program was suspended in September, 2013. All of the information that was contained in the database has since been deleted, a D.E.A. spokesperson told the Times.

If Obama and Congress were to undertake serious surveillance reforms, they would have a hard time doing it one authority at a time. The limits on U.S. surveillance were written in an analog age, when “pen registers” and “trap and trace devices” intercepted communications moving on copper wire. The legality of collecting phone metadata rests on a 1979 Supreme Court case, Smith v. Maryland, which held that the police did not need a warrant to obtain the phone numbers dialed from a single suspect’s land line. It didn’t say anything about location tracking, pattern-based analysis, or collecting phone records by the million. The discrepancy between the old guidelines and the new technology they describe has facilitated surprisingly broad interpretations of the ruling, most notably Section 215.

Last October, Senator Patrick Leahy, of Vermont, proposed the U.S.A. Freedom Act, which would curtail some of the N.S.A.’s domestic powers with an independent FISA advocate, more legal authority for a key oversight board, and more stringent legal standards for obtaining phone metadata and other records. It’s unclear whether the bill will make it through the Republican-controlled Congress, or what will happen if Congress fails to reform Section 215 before June, when it will expire if it’s not renewed. In the end, the branch of government most capable of settling the thorny N.S.A. debate may turn out to be the courts.