Thursday, February 27, 2020

The Feds' Bulk Collection of Our Data Records Has Been Expensive and Useless. But That Doesn't Mean It's Going to Stop.

By Scott Shackford - February 27, 2020 at 01:15PM

The U.S. government spent $100 million collecting all our phone and text records for four years and got next to nothing out of it.

Try to contain your surprise. (I'm actually shocked it's only $100 million.) This info comes from a newly declassified report from the federal Privacy and Civil Liberties Board. The report analyzes the call records program implemented by the USA Freedom Act in 2015, which formalized but also restrained the National Security Agency's secret collection of Americans' communications metadata.

Prior to the USA Freedom Act, the NSA had used the PATRIOT Act to justify collecting this data with neither the knowledge nor the consent of Americans, or even of Congress. Once Edward Snowden blew the whistle on this secret surveillance, the USA Freedom Act was hammered out as a compromise that gave the NSA much more limited access to collected metadata in order to pursue investigations using specific terms.

The USA Freedom Act sunsets in mid-March. We already know these searches haven't been all that helpful, because the NSA has abandoned them. Part of the problem was repeated situations where attempts to collect records went awry and brought in far more private information than they were allowed to look at under the law.

This new report shows that the mass collection of Americans' phone records turned out not to be a particularly good tool for tracking down terrorism. Its authors determined that the NSA wrote only 15 intelligence reports based on information from call records accessed through the law. Of those, 11 duplicated information that was already in FBI records. Two contained information that the FBI had received through other means. One led the FBI to vet an individual, but it ultimately decided not to open an investigation. So that just leaves just one case where the bureau received unique info that it decided to use to open a foreign intelligence investigation.

All that for $100 million!

A logical person would assume that letting these powers sunset would be the smartest choice. Why violate Americans' privacy rights if even the government itself acknowledges the intrusions aren't actually accomplishing anything? But logic means nothing next to institutional inertia. The government doesn't like to give up any power or program, even when it's not useful.

So now there's a big congressional fight about renewing the USA Freedom Act. In January, a bipartisan pack of privacy-minded lawmakers introduced a bill that would formally end the bulk collection of Americans' records and introduce other reforms to the secretive Foreign Intelligence Surveillance Amendment (FISA) Court to provide some more transparency and better protect Americans from unwarranted surveillance. Their bill has support of both the left-leaning tech activist group Demand Progress and the more conservative FreedomWorks.

But congressional leaders just want to push through a quick temporary renewal with some less modest fixes. Reps. Jerrold Nadler (D–N.Y.) and Adam Schiff (D–Calif.), chairs of the House Intelligence and Judiciary Committees, put together a reform bill of their own that would extend the USA Freedom Act until 2023. Nadler and Schiff's bill would end the bulk data collection program but would extend the part of Section 215 of the Patriot Act that lets the FBI secretly collect business records it deems relevant to terrorism investigations. So the feds will be able to easily collect your data when it's in the hands of a third party—and these days, that means most of your data.

Rep. Zoe Logren (D–Calif.), a strong privacy supporter who has previously teamed up with the likes of Reps. Justin Amash (I–Mich.) and Thomas Massie (R–Ky.) to try to limit the NSA and FBI's warrantless snooping powers, was not happy about this weaker bill. She has announced plans to introduce amendments. Yesterday, rather than debating the merits of the proposal, Democratic leaders cancelled the hearing, apparently worried that stronger privacy protections could kill the Schiff-Nadler bill's chances. Both FreedomWorks and Demand Progress have put out statements criticizing Schiff and Nadler for dodging the debate.

As Charlie Savage and Nicholas Fandos note at The New York Times, President Donald Trump is a wild card in this fight. Trump has railed against the FISA court and the surveillance state, due to the investigation of his presidential campaign. And some of his complaints were justified: Independent analysis have showed serious problems with how the FBI pursued its warrants to wiretap former Trump aide Carter Page, as well as a lack of openness and thoroughness with the FISA Court.

But the language the FBI used to justify snooping on Page is a completely different section of the law. And when Trump has been given opportunities to rein in federal surveillance of Americans not linked to Donald Trump, he did the exact opposite. Meanwhile, Attorney General William Barr has said he wants a "clean" reauthorization of the USA Freedom Act without any reforms at all, telling House Republicans that he can make administrative reforms to procedures. That's the worst possible outcome, because it would give Barr the power to decide—in secret—whose privacy rights are protected and whose are not. It's Congress' job, not Barr's, to put limits on the Justice Department's surveillance authorities.

Trump, this morning, showed some support for FISA reforms, but again apparently connected to the belief that changes to the USA Freedom Act have any relevance to the investigation of his campaign. They don't, but hey, if that's what helps push through changes that better protect all our privacy, I'm not going to complain.


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