Times Up for Mass Surveillance.

Impeachment and the fallout with Iran are not the only major items on the early 2020 congressional agenda.  Lawmakers this spring have the opportunity to end massive surveillance programs that erode civil liberties without making Americans safer.

Buried in the government funding bill passed in December was a temporary extension of Section 215 of the Patriot Act. Section 215 allows the National Security Agency to compel phone providers to turn over call detail records of their customers’ calls, including their phone numbers and when the call was made. Designed to assist intelligence analysts connect the dots between suspected terrorists, the program was found to be unconstitutional because analysts routinely abused it for years to conduct surveillance of Americans’ domestic telephone calls.

A decision on two other surveillance provisions, one authorizing roving wiretaps and another on “lone wolf” surveillance, will also be made before the March 15 deadline.

No justification exists for reauthorizing programs that collect huge amounts of information of ordinary Americans without a clear national security benefit. This was made evident by the revelations from former NSA analyst Edward Snowden that the government had relied on Section 215 to improperly sweep up millions of domestic phone calls.

Yet, there is no public evidence that call detail records have played a significant role in keeping Americans safe.  A  review of Section 215 usage by the Privacy and Civil Liberties Oversight Board revealed that it could not identify a “single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation.” Riddled with data it was not allowed to possess, in June 2018 the NSA voluntarily deleted all of the call detail records it had acquired since 2015. The spy agency reportedly no longer uses the program, sparking hope that Congress would recognize that the program is not vital to national security and let it expire.

But what happens to the remaining data collected by these programs, legally or otherwise, and who has access to it?  The Second Circuit Court of Appeals recently addressed some of these issues in a case that involved the collection and searching of data of Americans gathered through warrantless surveillance programs like Section 702 of the Patriot Act that are supposed to target persons outside of the U.S. 

In December the court issued a mixed ruling that upheld parts of the government’s bulk collection program that frequently captures emails and other data of Americans – the government calls this “incidental” collection- but questioned the right of government analysts at the FBI and CIA to search through that data because it “could violate the Fourth Amendment.”   In other words, just because the government scooped up all that data under a warrantless program does not give it carte blanche to search through it without a warrant.  

“If such a vast body of information is simply stored in a database, available for review by request from domestic law enforcement agencies solely on the speculative possibility that evidence of interest to agents investigating a particular individual might be found there, the program begins to look more like a dragnet, and a query more like a general warrant,” the court said.

This ruling, combined with the recent determination by the FISA court that the FBI’s use of backdoor searches were not “reasonably designed” to find evidence of crime, but were instead fishing expeditions, means that multiple courts have ruled that limitations exist on what the government can do with the data of Americans it intercepts and stores.  It also means that it’s time for lawmakers to stop hiding behind the veil of national security and end these surveillance programs that violate our constitutional rights.