Shuttering of NSA surveillance program emboldens privacy groups

The potential end to a controversial National Security Agency phone records collection program is energizing privacy groups and lawmakers who have long called for stricter limits on domestic surveillance powers.

A top national security aide to House Minority Leader Kevin McCarthy (R-Calif.) recently revealed on a podcast that, for the past six months, the spy agency hasn’t used a program that gathers metadata on domestic text messages and phone calls. He predicted that the Trump administration might not ask to renew the program, which is set to expire this year.

The aide’s remarks were followed by reports from The Washington Post and Wall Street Journal that the NSA is in the process of shuttering the program.

{mosads}Some privacy activists say these recent developments have strengthened their hand as they prepare to make their case on Capitol Hill, where they’ll argue that elements of the USA Freedom Act — Congress’s response to former NSA contractor Edward Snowden’s bombshell disclosures in 2013 — should not be reauthorized.

“[Privacy activists] always have thought that the program should end, that there was no basis for it, but it’s even easier to make that decision because it’s been defunct for the past six months,” Daniel Schuman, policy director at privacy group Demand Progress, told The Hill.

If Congress allows for the expiration of the surveillance program’s legal authority, often referred to as Section 215, it would likely defuse what many predicted would be a major congressional battle heading into a pivotal election year.

Representatives of the Electronic Frontier Foundation, a digital rights advocacy group, began meeting with congressional offices this past week to argue that the call-detail records program should be allowed to sunset, while pushing for other other surveillance reforms as well.

And at a congressional briefing this month, online civil liberties group Center for Democracy and Technology (CDT) called on House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) and other lawmakers to end the program.

“It was fortuitously timed to come right after the disclosure that this program hadn’t been used,” Chris Calabrese, CDT’s vice president of policy, told The Hill.

{mossecondads}A coalition of more than 30 advocacy groups on Wednesday penned an open letter requesting that Congress refuse to reauthorize the wide-ranging surveillance authority, which allows for the gathering of phone records, as well as the warrantless collection of other records deemed relevant to a terrorism investigation. 

Sen. Ron Wyden (D-Ore.), an outspoken surveillance critic and member of the Senate Intelligence Committee, said this past week that he will oppose reauthorization. 

“It is increasingly clear to me that the NSA’s implementation of reforms to the phone records dragnet has been fundamentally flawed,” Wyden said. “In my view, the administration must permanently end the phone records program and Congress should refuse to reauthorize it later this year.”

Sen. Rand Paul (R-Ky.), another staunch critic of surveillance, told The Hill that the program’s apparent end is “great news.” 

“I think that Americans shouldn’t have their privacy invaded by the government without a warrant,” he said.

And Rep. Jackie Speier (D-Calif.), a member of the House Intelligence Committee, indicated she might support the end of Section 215. 

“I don’t want to have the phone records of people being reviewed by NSA unless they have a warrant,” Speier told The Hill.

While the USA Freedom Act contains multiple surveillance provisions that will be up for reauthorization, the phone records program is likely to get the most attention.

The program allows the government to collect metadata — information like the length of calls, or when information is sent — on phone calls and text messages. Privacy activists have long maintained it is possible to glean highly sensitive information from those details.

Even some national security hawks acknowledged that the program’s reported end could alter the reauthorization fight.

“With the recent reports that the NSA is no longer utilizing the ‘Section 215’ program, Congress and the administration must assess its necessity going forward,” Rep. Jim Sensenbrenner (R-Wis.), one of the authors of the Patriot Act and then the USA Freedom Act, said in a statement to The Hill.

The USA Freedom Act, passed by Congress in 2015, authorized a pared-down version of the phone records program created by the Patriot Act after the 9/11 attacks. The 2015 law provides some safeguards against aspects of the program deemed overly invasive, but Congress renewed the government’s authority to sweep up troves of data on millions of U.S. citizens for national security purposes.

The call-detail records program has faced some collection issues over the past year. The NSA announced in June that it had purged hundreds of millions of records after discovering the data had been “contaminated” by records it was not supposed to receive.

The agency cited unspecified “technical irregularities” for the malfunction.

Multiple privacy activists who spoke to The Hill said they were surprised by reports of the NSA shuttering the call-detail records program, while noting they were aware that the agency was having some difficulty navigating the limits imposed by the 2015 law.

As recently as 2017, the government obtained 534 million records of phone calls and text messages from telecommunications providers, triple the amount collected the previous year.

Gen. Paul Nakasone, head of the NSA, on Wednesday said the agency was in a “deliberative process” over the program.

“We’ll work very, very closely with the administration and Congress to make recommendations on what authority should be reauthorized,” Nakasone said at the RSA Conference on Cybersecurity in San Francisco.

Privacy groups say there are other elements of the USA Freedom Act that they will be raising questions about. They are meeting with congressional offices, preparing letters and mobilizing their members as they gear up for the fight. 

“I don’t think the conversation should end with the call-detail record program,” Schuman from Demand Progress told The Hill. “Congress also has the opportunity, and should use this opportunity, to talk about more expansive surveillance reform.”

Jacqueline Thomsen contributed.