Battle lines forming over surveillance authority

Another government surveillance authority is set to expire in four months, and a familiar battle is brewing between those who want to curtail what they view as federal overreach and those who want to see the national security program continue largely unchanged.

A group of nearly forty non-profit groups focusing on human rights, privacy and civil liberties wrote to leaders on the House Judiciary Committee Aug. 14 urging them to use the upcoming expiration of Section 215 of the Patriot Act in December to repeal the controversial (and seemingly shuttered) Call Detail Records program.

"We urge you to oppose, and our organizations will oppose, any bill to reauthorize Section 215 that does not include meaningful surveillance reforms," the groups wrote. "Given the CDR program's extraordinary breadth, its lack of demonstrated efficacy, and the government's failure to lawfully implement it, repealing the CDR program is a necessary first step, although not sufficient without other major reforms."

The current iteration of the CDR, enshrined into law when the USA Freedom Act was passed into law in 2015, was designed to replace the bulk warrantless telephone surveillance program instituted by the Bush administration following the Sept. 11 terrorist attacks. News reports have since claimed the National Security Agency has voluntarily shuttered the program and requested the Trump administration not push for its reauthorization, citing a general lack of usefulness as well as technical complexities created by the USA Freedom Act that led to the overcollection of hundreds of millions of unauthorized telephone records between 2015 and 2018.

The New York Times reported Aug. 15 that Dan Coats, in one of his final official acts as Director of National Intelligence, wrote to Congress to request a permanent reauthorization of the Sec. 215 surveillance authorities.

Because the law allows NSA to collect records from anyone two "hops" or degrees removed from the target, the groups argue that this means "the majority of individuals surveilled under the program are neither suspected of any wrongdoing, nor in contact with anyone who is." For instance, they point out that in the government's latest transparency report, it listed just 11 targets under the CDR program in 2018, yet were able to collect 434 million records related to 19 million phone identifiers.

Opponents of mass surveillance are once again eyeing the expiration as an opportunity to build stronger civil liberty guardrails around the program. One of its biggest detractors, Sen. Ron Wyden (D-Ore.) said that he was planning to "fight hard to put a stake in" the CDR program once and for all but warned that proponents in Congress will likely drag out the fight until the final days in December to "make it seem like an emergency and claim that if Congress doesn't quickly reauthorize…there will be a disaster."

"It has never been used to stop a single terrorist attack, and it's even less useful now, when the bad guys have so many other ways to communicate," Wyden said last week at a hacker conference in Las Vegas, according to a transcript sent by his office. "My concern, however, is that if you leave a spying authority on the books, this administration will find a way to abuse it."

Beyond the CDR program, Wyden also said that in communications with the FBI and Director of National Intelligence in 2014, he confirmed that Section 215 authorities were also used to obtain "historical records of Americans' location data" through their phones. The public needs to know whether the government's interpretation of the law remains unchanged today before reauthorizing the statute.

Apart from telephone metadata, precisely what kind of records and information the government is entitled to request under Section 215 -- and what is out of scope remains -- unclear even today. Under the letter of the law, the government can also legally compel third party organizations, like telephone companies, to hand over "any tangible things," including books, records, papers, documents and "other items" that are relevant to foreign intelligence or terrorism investigations.

Andrew Crocker, a staff attorney at the Electronic Frontier Foundation, told FCW in an email exchange earlier this year that the phrases "tangible things" and "other items" are so legally murky that "we still don't have a great idea where it stops" and what records the government is entitled to ask for.

This is especially true in the digital domain, where it's not clear whether the government is interpreting the passage to collect things like the contents of emails and other digital records.

"After the passage of USA Freedom Act in 2015, Section 215 was bifurcated into the power to obtain records of telephone calls and a power to obtain all other kinds of tangible things," said Crocker. "We've learned far more (relatively speaking) about the telephone records piece than the 'all other things' piece, and it's something I hope Congress asks about as the debate over reauthorization of 215 begins in earnest."

While Sec. 215 opponents are hoping that a new Democratic majority in the House and turnover in the Senate from the 2018 elections might play in their favor, it remains to be seen whether this Congress – even with Democrats in control of the House of Representatives -- will be any more receptive to new restrictions than the in the past.