The Senate is expected to convene Sunday to decide whether to permit the lapse of a surveillance program that authorizes the government to collect en masse information about Americans’ telephone calls.
Amid news coverage of the debate, I reread relevant portions of reports by several panels within the executive branch that have assessed the effectiveness of the program, which, according to the panels, has never been instrumental in any investigation of terrorism.
At issue is Section 215 of the USA Patriot Act, which authorizes the National Security Agency to harvest telephone numbers and other details of calls made or received in the US. By its terms, Section 215 will sunset on June 1. A federal appeals court in New York ruled recently that the collection of so-called metadata in bulk as the government currently gathers it is illegal.
Though collection of telephone records by the government predates the September 11 attacks, the Patriot Act broadened the types of records the government can gather. As the appeals court found, the government has collected telephone metadata in bulk for at least the past nine years.
A report on the telephone records program published in January 2014 by the Privacy and Civil Liberties Review Board, an independent bipartisan agency established by law in 2007, concluded that Section 215 “has shown minimal value in safeguarding the nation from terrorism.” According to the board:
“Based on the information provided to the Board, including classified briefings and documentation, we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack. And we believe that in only one instance over the past seven years has the program arguably contributed to the identification of an unknown terrorism suspect. Even in that case, the suspect was not involved in planning a terrorist attack and there is reason to believe that the FBI may have discovered him without the contribution of the NSA program.”
A report published roughly a month earlier by The President’s Review Group on Intelligence and Communications Technologies arrived at a similar conclusion. According to that panel:
“Our review suggests that the information contributed to terrorist investigations by the use of section 215 telephony meta-data was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional section 215 orders. Moreover, there is reason for caution about the view that the program is efficacious in alleviating concern about possible terrorist connections, given the fact that meta-data captured by the program covers only a portion of the records of only a few telephone service providers.”
The Department of Justice’s Office of Inspector General, which reviewed the FBI’s use of Section 215 for surveillance generally over a two-year period starting in 2007, also found the provision to be of limited value in tracking terrorists. “The agents we interviewed did not identify any major case developments that resulted form the records obtained in response to Section 215 orders, but told us the authority is valuable when it is the only means to obtain certain information,” the Inspector General wrote in a report released May 22.
Based on the findings of these panels, it seems reasonable to conclude that no terrorism investigations have turned on bulk collection of telephone metadata by the government.
As a practical matter, the imminent sunset of Section 215 leaves the Senate with two choices: pass a measure that narrows the government’s authority to collect telephone call metadata or do nothing and allow Section 215 to expire. Of course, allowing Section 215 to lapse would not preclude Congress from legislating a replacement.
President Obama has called on senators to pass legislation that the House approved on May 13. That bill would authorize the NSA to access call records from telephone companies, which would be obligated to collect and store the data, after obtaining judicial approval.