According to documents leaked by Edward Snowden in the summer of 2013, the National Security Agency (NSA) is collecting the telephone records of hundreds of millions Americans. Telephone service providers are compelled to turn over the “phone metadata” – records on who calls who, when, and for how long – to the NSA on a daily basis. The government claims that Section 215 of the PATRIOT Act provides them with the authority to collect this information in bulk, even if the information is not linked to any crime or investigation. This has sparked an intense debate over whether Section 215 should be reformed to prohibit this bulk collection authority. Here is a primer on the law, starting with the key reforms we want to see happen.
- Enact legislation to clarify that Section 215 of the PATRIOT Act does not grant government open-ended authority to collect private records of Americans in bulk. The USA FREEDOM Act takes significant steps toward accomplishing this goal.Section 101(a) of H.R.3361 and S.1599 (113th Cong.).
- End the NSA’s telephony metadata bulk collection program. Instead, service providers, voluntarily holding business records, would be compelled to disclose records to the government in response to a targeted Section 215 order from the Foreign Intelligence Surveillance Court (FISC).
What Section 215 does: Section 215 of the PATRIOT Act – encoded at 50 U.S.C. 1861 – enables the government to force private parties to disclose any “tangible thing,” including business records, for national security purposes. To obtain the records under Section 215, the FBI applies for an order from the FISC. The FBI’s application must show reasonable grounds to believe that the records are relevant to an investigation to obtain foreign intelligence information or to protect against international terrorism. If the FISC finds that the FBI’s application meets the requirements, the FISC must issue the order. The orders are secret – recipients are generally prohibited from revealing anything about the order.
How the government uses Section 215: The government has interpreted Section 215 to authorize collection of private records about Americans in bulk, including records with no connection to an investigation. For example, the FBI uses Section 215 to force major American telecom companies to provide the NSA – “on an ongoing daily basis” – with the phone records of millions of Americans. These phone records – also referred to as “metadata” – do not include the content of conversations, but show who called whom, the date, time, duration and frequency of calls for millions of Americans who are not suspected of any crime. The NSA stores this data for up to five years. So far, the NSA’s bulk collection of telephone metadata has lasted since 2006.
What types of records are included under Section 215: Section 215 is broadly worded, covering all business records on Americans. Section 215 specifically refers to medical records, educational records, book sales records, firearm sales records, tax records, and library circulation records. See 1861(a)(3). The statute also covers Americans’ credit card purchase information, cell phone locations, travel logs, Internet behavior, and more. The DOJ says that any records showing relationship among people can be obtained in bulk with a Section 215 order.
Everyone’s records are considered “relevant”: Section 215 explicitly limits the government to the collection of records that are “relevant” to an investigation. However, the government (supported by the FISC) interpreted Section 215 to permit indefinite bulk collection of records on every American, including records that are not yet created – even though a tiny fraction of these records are actually used in any investigation. This interpretation renders the term “relevant” in Section 215 meaningless, calling into question whether there are any real limits to the government’s claim of authority to collect private business records on Americans in bulk. Rep. Sensenbrenner, an original author of the PATRIOT Act, argued that this interpretation of Section 215 conflicts with Congressional intent.
The power of metadata (i.e. your associations): The government has defended the NSA’s bulk collection of phone records by arguing that it is just collecting metadata, not listening in on phone conversations. However, metadata can be very revealing. It allows the government to scrutinize your contact with loved ones, doctors, lawyers, clergy, political parties, and others — details even close friends and family may not know. This information can reveal political activities, intimate relationships, health conditions, and more. It would be a significant loss for civil liberties to cede general authority to the government to collect private metadata in bulk about individuals who have no connection to an investigation.
Bulk metadata collection is unnecessary for national security: In recent months, several impartial sources with broad access to classified documents concluded the NSA’s bulk collection program is unnecessary to protect national security, and that using more targeted methods would not impede our ability to fight international terrorism. The President’s Review Group said, “Our review suggests that that the information contributed to terrorist investigations by the use of Section 215 telephony meta-data was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional Section 215 orders. [E]ven without collecting and storing bulk telephony meta-data itself, there are alternative ways for the government to achieve its legitimate goals, while significantly limiting the invasion of privacy and the risk of government abuse.” The PCLOB stated that, “We have not identified a single instance involving a threat to the U.S. in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack. […] In those few cases where some information not already known to the government was generated through the use of Section 215 records, we have seen little indication that the same result could not have been obtained through traditional, targeted collection of telephone records.” In an 11/18/13 amicus brief, Sens. Wyden, Udall, and Henrich stated, “[We] have reviewed this surveillance extensively and have seen no evidence that the bulk collection of Americans’ phone records has provided any intelligence of value that could not have been gathered through less intrusive means.”