This program, first publicly revealed by former NSA contractor Edward Snowden in 2013, allows the NSA to gather records of U.S. phone calls and texts from major telecommunications companies in secret under Section 215 of the USA Patriot Act.
Such records – which show who we called, when and for how long – can be highly revealing. They can show that we called a psychiatrist or marriage counselor, consulted with a religious adviser, helped plan a protest, or reached out to a rape hotline. They can also let the government create an elaborate picture of our relationships – not just who our friends are, but who our friends’ friends are.
Congress took a step toward reining in this surveillance when it passed the USA Freedom Act in 2015, ending the NSA’s collection of U.S. phone records in bulk. However, the reformed law still allows the agency to review and collect phone records. In 2017, even under the new constraints, the NSA reported collecting a startling 534 million of these records. Thus, while this domestic surveillance is no longer as sweeping as it once was, the government has still had vast, intrusive powers under Section 215.
The reported discontinuation of this monitoring during the past six months is not necessarily permanent. The U.S. executive branch could still ask Congress to renew Section 215, which will otherwise expire in December.
This is a good time for us to reflect on the program’s many problems. For example, despite the enormous scale and long duration of the snooping, there is no evidence that it was ever used to thwart a terrorist offense aimed at the United States.
Moreover, the Section 215 program’s implementation was botched so badly that last year the NSA deleted years’ worth of the records.
Routinely gathering the phone records of potentially thousands of Americans is a serious and disproportionate intrusion on rights, especially given that there are alternatives.
If authorities suspect someone in the United States is involved in planning a crime, including a terrorism offense, they can easily obtain the person’s phone records through a subpoena. Law enforcement officers do this routinely.
If the government believes it needs to conduct surveillance of someone in the United States for intelligence reasons, it can seek a specific order from the Foreign Intelligence Surveillance Court. Agents can do this when, for example, they suspect someone of being a spy for a foreign power or part of a terrorist organization.
The Section 215 phone records program, it seems, was from the beginning a large-scale fishing expedition. Letting government stockpile sensitive information about individuals, especially in secret, should raise alarm in any society. The potential for abuse is clear.
The reforms Congress imposed in the USA Freedom Act were a good start, but insufficient to end the human rights violations this domestic spying entailed. If this program is indeed dormant, the government should let it stay that way until the law underpinning it expires.
Congress should also look hard at other surveillance activities that may trample rights domestically and abroad. These include snooping under the highly secretive Executive Order 12333, a 1981 authority that could let the NSA spy on people in the United States, and Section 702 of the Foreign Intelligence Surveillance Act, which allows widespread NSA and FBI use of warrantless surveillance.
As the experience with the domestic call-records program shows, government claims that spying activities are justified should not be taken at face value – and the intrusion on rights should be taken seriously.