Civil liberties activists have long argued that bulk collection of Americans’ phone records doesn’t make us any safer. Now, we’ve got pretty clear evidence that’s the case.
Luke Murry, an adviser to House Minority Leader Kevin McCarthy, R-Calif., told the Lawfare Podcast on Saturday that for the last six months the Trump administration “hasn’t actually been using” the phone record collection program authorized by the 2015 USA FREEDOM Act. He added that he’s unsure if the administration will ask Congress to reauthorize this program at the end of the year.
If Murry is telling the truth about the administration’s non-use of the phone metadata collection program, then it’s even more obvious proof that such a program does more to damage civil liberties than it does to protect national security. Clearly, the administration shouldn’t ask Congress to reauthorize this program.
The USA FREEDOM Act made some modest reforms to the original phone collection program authorized by Section 215 of the PATRIOT Act, but it has still routinely been abused to allow for bulk collection. During the debate over whether or not to pass the FREEDOM Act, Rep. Justin Amash, R-Mich., argued this program “specifically authoriz[es] such collection in violation of the Fourth Amendment to the Constitution.” He’s right, this bill permits the government to collect troves of data from phone companies with a simple court order. No actual warrant required.
In the final year of the Obama administration, 151 million phone records were collected. To get this done, the NSA obtained 42 court orders from the secretive FISA Court through the USA FREEDOM Act. Then, in the first year of the Trump administration, 40 court orders were used to collect 543 million phone records. No, these records don’t include the content of phone conversations, but they do reveal metadata such as who a person is calling and for how long.
This clearly constitutes “bulk” collection, as much of that data isn’t relevant to any particular terror-related investigation. As Sen. Ron Wyden, D-Ore., said in a statement Tuesday “the NSA’s implementation of reforms to the phone records dragnet has been fundamentally flawed … despite the intent of Congress, bulk collection of phone records never really ended.” When intelligence agencies collect such broad swaths of phone records, it makes it harder to hone in on the records of folks who actually pose a direct threat to national security.
In June 2018, NSA admitted that much of the data collected under the program was data the “NSA was not authorized to receive,” and the agency deleted the data that had been collected. That said, the FREEDOM Act doesn’t have any provision that requires the NSA to delete data that is collected improperly, meaning Americans are left to trust an agency that operates in shadows to be responsible with data they inadvertently collect in their pursuit of terrorists. That’s troubling, because it creates a treasure trove for hackers and other bad actors who want to illegally obtain phone data.
Requiring the NSA to obtain warrants before collecting metadata from companies would protect the Fourth Amendment rights of law-abiding Americans, while simultaneously making it easier for the feds to focus on true national security threats.
The USA FREEDOM Act is set to expire at the end of this year if Congress does not vote to reauthorize it. If the last six months are any indication, there’s no real need for Congress to reauthorize this civil liberties-eroding legislation. Lawmakers should let this legislation sunset, and pass meaningful reforms that require warrants based on probable cause. After all, Americans deserve some privacy.
Dan King (@Kinger_Liberty) is a senior contributor at Young Voices, where he covers civil liberties and criminal justice reform.
