The federal authority that lets the intelligence community collect telephone call data on millions of Americans with little effective oversight, to search for possible terrorist or spy networks, will expire March 15. It should not be renewed.
Such surveillance is not cost-effective, and the intelligence community has other effective tools. A recent study by a congressional oversight board, reported in The New York Times, found that the program has cost $100 million in the past five years but yielded only one significant lead. According to other reports, that lead disclosed covert funding for a foreign terrorist organization, not an imminent threat to American life.
One reason the program has not worked as hoped to uncover terrorist networks in the United States is that terror organizations such as ISIS have learned not to use cellphones or landlines. Instead, they rely on encrypted messaging services.
Unfortunately, the program also has a high potential for abuse. The National Security Agency, which collects the call data from telephone service providers, decided last year to suspend use of the authority because technical problems led to collecting data it was not authorized to have. The federal court that oversees use of the authority, the Foreign Intelligence Surveillance Court, has raised concerns that the FBI, which uses the data, lacks effective controls over which of its employees and contractors can access it.
Once the NSA has persuaded the court that a certain telephone number in the United States might be tied to a terrorist or spy network – the standard is “reasonable, articulable suspicion” – it can ask telephone companies for all the numbers it connects to, and their connections as well. Then it can ask for the next set of connections. Millions of calls can be tracked.
A reasonable, articulable suspicion is not a very high hurdle for invading Americans’ privacy. We have seen how it can be manipulated by determined investigators. As the Justice Department inspector general has reported, the FBI did not tell the FISC of information it had that showed that Carter Page, a Trump campaign official, was probably not conspiring with the Russian government when it sought authority to wiretap him as a foreign agent.
The Foreign Intelligence Surveillance Act also is up for renewal, as well as Section 215 of the Patriot Act that authorizes bulk collection of telephone call data. Republican members of Congress already have serious questions about FISA because of the inspector general’s report that identified 17 “significant inaccuracies and omissions” involving the surveillance warrant applications for Page. The authority for the special court and the procedures it follows deserve special attention and amending where needed. But Section 215 has outlived any usefulness it might once have had despite the Trump administration’s request that it be renewed so the NSA can restart collecting telephone call data if needed.
Even if Section 215 is repealed, the intelligence community still will have a more restricted and heavily monitored authority to collect information if there’s strong evidence, as opposed to suspicion, that it is relevant to an intelligence probe. The Section 215 authority, as it has been employed, is very costly, largely ineffective and a threat to the privacy of a large number of Americans. No one should miss it when it’s gone.
— Post and Courier, Charleston