Since the 9/11 attacks, the National Security Agency has operated a dragnet of the phone records of hundreds of millions of Americans without specific suspicion of their involvement in terrorism. Almost 18 years later, civil-libertarian legislators from both parties are introducing a bill to abolish a vestige of one of the most infamous surveillance programs in American history.
The new Ending Mass Collection of Americans’ Phone Records Act would remove any authority for the NSA and FBI to domestically collect phone records “other than those identified by the specific selection term included in [a warrant] application.” Sens. Rand Paul (R-Ky.) and Ron Wyden (D-Ore.) and Reps. Justin Amash (R-Mich.) and Zoe Lofgren (D-Calif.), four of Congress’ leading surveillance skeptics, unveiled the bill on Thursday.
“It’s time, finally, to put a stake in the heart of this unnecessary government surveillance program and start to restore some of Americans’ liberties,” Wyden said in a statement.
In particular, the bill would kill off what’s called the Call Detail Records program under an effort to restrict the domestic phone-data dragnet in the wake of Edward Snowden’s surveillance revelations. Before the so-called USA FREEDOM Act became law in 2015, some civil libertarians warned that its privacy protections, watered down by intelligence officials and their allies, would prove inadequate. They turned out to be prescient: the FREEDOM Act led to an overcollection of call data so massive that the NSA announced last it was deleting the entire FREEDOM Act trove, which included some 685 million phone records.
The failure of the USA FREEDOM Act was significant enough that the Trump administration “actually hasn’t been using it for the past six months,” a national-security aide to House Republican Leader Kevin McCarthy told the Lawfare podcast earlier this month.
That apparent shutdown prompted speculation in surveillance-policy circles that the NSA might have either migrated its domestic phone-data dragnets under authorities outside of the Foreign Intelligence Surveillance Act (FISA) – something the NSA has repeatedly done with its post-9/11 warrantless surveillance efforts – or shut down the collection out of an assessment that analyzing call patterns at scale is an outmoded form of counterterrorism surveillance.
At the same time, however, U.S. officials have conceded that the post-9/11 domestic phone-records dragnet has not stopped a single terrorist attack – despite misleadingly suggesting otherwise after The Guardian exposed the surveillance in June 2013, thanks to Snowden. In 2015, a federal appeals court ruled that the bulk collection of Americans’ phone data was illegal, adding momentum to the USA FREEDOM Act, whose provisions expire on Dec 15.
The director of the NSA has equivocated on the importance of retaining the domestic phone-records dragnet. “We’re in a deliberative process right now,” Gen. Paul Nakasone told the RSA Conference in San Francisco on Mar. 6. “We will work very, very closely with the administration and Congress.”
Accordingly, privacy advocates on Capitol Hill see a rare opportunity.
Usually, the balance of legislative forces favor preserving wide-ranging authorities for NSA surveillance. Despite then-Sen. Barack Obama’s criticisms of “unlawful and unconstitutional” surveillance by the Bush administration, Obama voted for what would prove to be a seminal NSA authority for collecting massive amounts of Internet, email and other digital records, including from Americans’ international communications. Despite President Donald Trump’s heated criticisms of the intelligence agencies, that authority, known as FISA Section 702, survived a 2018 reauthorization battle.
But the Call Detail Records program created by the USA FREEDOM Act – one that outsourced much of the surveillance activity to telecommunications companies in a cumbersome way – never had substantial support, even before the revelations of the overcollection and subsequent purge and shutdown. While civil libertarians, having lived through numerous legislative defeats since 9/11, are wary of overconfidence, one congressional aide contended that “there’s a clear path forward for abolishing this program.”
Amash, who led the charge in the House of Representatives to constrain the NSA after the Snowden revelations, said in a statement: “Getting rid of this program will vindicate Americans’ rights and begin the process of making the broader PATRIOT Act reforms that are going to be necessary to address the law’s serious constitutional flaws.”