Should we be celebratory or suspicious that the federal government has apparently suspended its program of accessing Americans' phone records after years of public fighting for the authority to do so?
A quiet sort-of bombshell dropped over the weekend on the national security-focused podcast at Lawfare: The National Security Agency (NSA) appears to have given up on the mass collection and consulting of Americans' telephone metadata. That's the information about who we've been calling, how long, how frequently—pretty much everything but the contents of the calls themselves.
If true, this is quite the surprise: It has been close to six years since Edward Snowden risked arrest and prosecution, ultimately fleeing to Russia for sanctuary, all to reveal the existence of this program (and others). Following a massive public fight over how much information the NSA should be allowed to collect about Americans (its job is to track information about foreign governments and terrorists), President Barack Obama and Congress passed the USA Freedom Act, which brought the previously secret program into the sunlight, but added some restrictions (they had to request records from telecom companies rather than just grabbing them for themselves) and a touch of oversight so that the NSA didn't have just full rein to traipse through our personal data. Even that oversight wasn't enough for privacy-minded lawmakers like Rep. Justin Amash (R-Mich.) and Sen. Rand Paul (R-Ky.), who voted against its passage.
Last summer the NSA announced it was deleting millions of phone and text records it had been gathering that it wasn't supposed to have. This has been a recurring issue with the NSA's various tech surveillance efforts: Though the agency is trying to cast a wide net to keep track of potential terrorists, it's regularly getting records and data that even the NSA grasps it doesn't have the authority to collect or even look at.
But since then, according to Luke Murry, the National Security Adviser to House Minority Leader Kevin McCarthy (R-Calif.), the NSA has stopped using this data collection system entirely, and even more surprising, it's now an open question as to whether Congress will even be asked to renew the USA Freedom Act, which expires at the end of the year.
This admission should be seen as remarkable, if it's true. The New York Times notes:
The disclosure that the program has apparently been shut down for months "changes the entire landscape of the debate," said Daniel Schuman, the policy director of Demand Progress, an advocacy group that focuses on civil liberties and government accountability.
Since "the sky hasn't fallen" without the program, he said, the intelligence community must make the case that reviving it is necessary — if, indeed, the National Security Agency thinks it is worth the effort to keep trying to make it work.
The phone records program had never thwarted a terrorist attack, a fact that emerged during the post-Snowden debate.
"If there is an ongoing program, even if we all have doubts about it, that's a very different political matter than if the program has actually stopped," Mr. Schuman said. "Then the question becomes, 'Why restart it?' rather than whether to turn it off."
Now, if the USA Freedom Act quietly sunsets, note that this doesn't in any way affect the NSA's ability to snoop on foreign targets in other countries, particularly suspected terrorists. That the NSA isn't even using this program just highlights what a massive lie it was when supporters of these surveillance authorities insisted that it was vital to protecting national security that the NSA have easy access to these records.
The Wall Street Journal observes that it's not really certain as of yet whether President Donald Trump's administration will allow the authorities to sunset or seek renewal. This fight may heat up again in the fall.
After years of covering these federal surveillance issues, I'm reluctant to predict what will happen here. Recall that in the midst of accusing the federal government of illegally snooping on him and his campaign staff as part of the investigation of Russia's attempts to meddle with the 2016 election, Trump at the same time renewed and expanded a section of the Foreign Intelligence Surveillance Act Amendments that allows secret, warrantless surveillance of Americans for certain types of crimes. Trump has made it clear that his concerns about the violation of privacy rights extends only to those in his orbit. Don't expect him to go to bat for your right to keep your phone records out of the government's hands.
And to be clear, the possible end of the USA Freedom Act doesn't mean the federal government doesn't have access to all sorts of tools needed to secretly snoop on you, or that your personal data isn't being collected in any number of ways you have little control over. Reason's Elizabeth Nolan Brown noted just yesterday how surveillance authorities granted under the PATRIOT Act to allegedly fight terrorism were used to investigate prostitution rings.