By Paul Rosenzweig, The George Washington University Law School
As we all know, telephone call records are powerful metadata. Who you call, when, and for how long, creates a mosaic that can reveal the most intimate details of your life. That is exactly what the Section 215 metadata program does. But does it actually help counter foreign terrorism and attacks—that remains to be answered.
Reviewing the Section 215 Metadata Program
The bipartisan Privacy and Civil Liberties Oversight Board conducted a full-scale review of the Section 215 metadata program. The board’s review suggested that the telephone records collected by the NSA under Section 215 had provided some value, primarily in two ways.
First, by offering additional leads regarding the contacts of terrorism suspects already known to investigators , and second, by demonstrating that foreign terrorist plots do not have a U.S. nexus. New leads can help investigators confirm suspicions about the target of an inquiry or about persons in contact with that target.
This is a transcript from the video series The Surveillance State: Big Data, Freedom, and You. Watch it now, on Wondrium.
Duplicating FBI’s Lead—Generating Efforts
Identifying the nexus of a foreign plot can definitely help the intelligence community focus its investigative resources by avoiding false leads, and channeling efforts where they’re most needed.
The review suggested that the Section 215 metadata program mostly duplicates the FBI’s own lead-generating efforts. Then again, some of the value of the Section 215 metadata program is in its negative information.
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Boston Marathon Bombing
For example, after the Boston Marathon bombing, some concerns initially surfaced that the ethnic Chechen Tsarnaev brothers might have been acting at the behest of overseas terrorists. Two U.S. intelligence-gathering databases, one known as PRISM, which mostly collects information on sender-to-recipient e-mail communications and internet searches, and the other one the Section 215 metadata program, were used to rule out the possibility that the mayhem unleashed at the Boston Marathon was part of a foreign plot.
Based on the young men’s phone logs and Internet search activity, investigators became convinced that they were homegrown violent extremists, and that there wasn’t anything substantive to tie them to a terrorist group.
Section 215 Metadata and PRISM Programs
While that value might be less than if the systems had discovered a positive connection, we really shouldn’t underestimate the value of establishing that a hypothesis is false.
By demonstrating a lack of overseas connection between the Tsarnaevs and foreign actors, the section 215 metadata and PRISM programs allowed investigators to quickly focus their work on domestic activities—ones that later became the subject matter for the younger brother’s Tsarnaev’s criminal trial for planting the bombs in Boston. The older brother, of course, died in a shootout with the police.
The Privacy and Civil Liberties Oversight Board
The Privacy and Civil Liberties Oversight Board’s review was generally skeptical of the usefulness of the program. For one thing, as the board said, the best justification for the government’s routine collection of all phone records is that it helps in cases where there is no threat to the United States—that is, in cases where there is no real foreign terrorism connection. The board said, “We should find it a bit strange and disturbing that for a program officially focused on collection about foreign terrorism, the best use of it is for non-foreign activities.”
Standing against this limited effectiveness, there are the some who say that the Section 215 metadata program provides grave potential for abuse by the government. And that is fair enough—the potential for abuse is quite realistic and plausible.
But the Privacy and Civil Liberties Oversight Board found precious little evidence of actual abuse. Here is what they said in their report on the program:
Over the years, a series of compliance issues were brought to the attention of the FISA court—that is the Foreign Intelligence Surveillance Act court—by the government. However, none of these compliance issues involved significant intentional misuse of the system. Nor has the Board seen any evidence of bad faith or misconduct on the part of any government officials or agents involved with the program. Rather, the compliance issues were recognized by the FISA court—and are recognized by the Board—as a product of the program’s technological complexity and vast scope, illustrating the risks inherent in such a program.
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Potential for Abuse
But even when there is not any abuse, we might reasonably ask whether or not the potential for abuse—or the structure of the program—has implications for privacy and civil liberties. From that perspective, the concerns are more palpable.
The idea that the government holds a database of this magnitude is quite daunting to many citizens, even if the data is used only for the best of purposes.
Common Questions about Section 215 Metadata Program—Does it work?
The Section 215 and PRISM program were used to rule out the possibility of overseas connection between the Tsarnaevs and foreign actors. It allowed investigators to focus their work on domestic activities instead.
The Privacy and Civil Liberties Oversight Board found it a bit strange and disturbing that for a program officially focused on collection about foreign terrorism, the best use of it is for non-foreign activities.
The board found that the section 215 metadata program had provided some value by offering additional leads regarding the contacts of terrorism suspects and by demonstrating that foreign terrorist plots did not have a U.S. nexus.