The NSA “actually hasn’t been using it for the past six months because of problems with the way in which that information has been collected,” said Luke Murry, national security adviser to House Minority Leader Kevin McCarthy (R-Calif.), on a Lawfare podcast on Saturday.
That raises questions about whether the Trump administration will seek to reauthorize the program when it expires at the end of this year. “I’m not actually certain that the administration will want to start that back up given where they have been in the past six months,” Murry said on the podcast.
An NSA spokesman and a White House spokeswoman declined to comment.
The program in its current form was authorized under the 2015 USA Freedom Act after a contentious two-year debate that sought to balance Americans’ privacy with the need to prevent terrorist attacks.
Carriers such as AT&T and Verizon collect information on customers’ calls and texts that record who called or texted whom and for how long. That “metadata” — though not the calls’ or messages’ content — was what NSA analysts were interested in so they could discern potential links to suspected terrorists or suspicious patterns.
Under the Freedom Act, the agency may have access to that data only after obtaining a court order that specifies a phone number or person associated with a suspected foreign terrorist. But these days, terrorists generally are not coordinating via phone calls or standard text messages, but communicate by using secure apps that don’t always create metadata trails, analysts said.
A spokesman for McCarthy, Matt Sparks, said the debate over the program’s reauthorization “is not something on the radar right now” in Congress. “It’s something that will come up in the future.” He added that Murry was not “speaking on behalf of administration policy.”
The collection regime is sometimes referred to as the “Section 215” phone metadata program, a reference to a section of the USA Patriot Act, which was passed in the weeks after the Sept. 11, 2001, attacks. Begun in secret, the program then relied on the largest phone carriers to turn over to the NSA each day billions of customers’ phone records without any court order. That program was eventually placed under court supervision, but was still kept hidden from the public.
A leak of a court order in 2013 by former NSA contractor Edward Snowden forced the Obama administration to acknowledge the program’s existence, whose scope shocked the public and sparked a heated congressional debate culminating in the USA Freedom Act.
“It is increasingly clear to me that the NSA’s implementation of reforms to the phone records dragnet has been fundamentally flawed,” said Sen. Ron Wyden (D-Ore.), an Intelligence Committee member who obliquely warned about the program before it was disclosed. “In my view, the administration must permanently end the phone records program and Congress should refuse to reauthorize it later this year,” he said in a statement Tuesday.
Even if the government decides that the call logs are no longer useful, there are likely other types of records, such as email metadata, that it is collecting under the same authority, some national security experts said.
“We know almost nothing about how the government is using the other surveillance authorities that Section 215 gives it,” said Alex Abdo, litigation director at Columbia University’s Knight First Amendment Institute. “It is impossible to have a meaningful debate about whether to extend those surveillance powers without getting answers to basic questions about how they’re used.’’