“Privacy” Board: NSA Spying Was Fine, Except It Didn’t Work
Image credit: EFF.

“Privacy” Board: NSA Spying Was Fine, Except It Didn’t Work

The US Government’s Privacy and Civil Liberties Oversight Board recently released their report on the Call Detail Records program used by the National Security Agency as part of its massive spying operation on people in the US.

The PCLOB document, “Report on the Government’s Use of the Call Data Records Program Under the USA Freedom Act,” was issued in late February and was declassified from TOP SECRET//SI//NOFORN (Special Intelligence//No Foreign Nationals) status. As the title suggests, it updates previous reports to review changes in the program since the passage of the USA Freedom Act in 2015 in June of 2015. That act changed the legal guidelines around the NSA’s handling of business records, such as phone information it received through the CDR program.

As we learned from whistleblower Edward Snowden, the NSA has been spying on people in the US and across the globe. This involves monitoring phone calls, email, social media content, online searches and more. The PCLOB report in fact points out the critical role that Snowden played in changing the public discourse around US government spying. (p 7)

“In 2013, unauthorized disclosures of classified documents by Edward Snowden revealed the nature and scope of the CDR program (among other intelligence activities). The President and House Minority Leader asked the Board to review aspects of the CDR program. The President also ordered a separate review group to evaluate the program and consider modifications to its operations.

PCLOB report

In a widely ignored report in 2014, the PCLOB reported that the CDR program was in fact illegal. While they don’t use that specific word, they point out that even the overly aggressive Section 215 of the USA PATRIOT ACT did not authorize the program and that it conflicted with the Electronic Communications Privacy Act. Until the changes under the USA Freedom Act, the CDR program effectively collected up metadata about all phone calls.

The PCLOB report shows us that even under the USA Freedom Act changes, the CDR program still gave the NSA extremely broad powers that US telecommunications firms complied with.

A significant change to the program under the USA Freedom Act was that the NSA could no longer vacuum up metadata about all calls. Instead it began by limiting the source of searches. The source “must be associated with a foreign power engaged in international terrorism and be approved by the FISA court.” (p 1) While this might seem like a sweeping change, the FISA court is a secret court that generally acts as a rubber stamp for these sorts of requests. Additionally, the US government applies the label of “terrorism” in ways that suit it, similar to how in occupied Afghanistan and Iraq, boys and men could be considered enemy combatants simply by being present in an area.

A second and related change implemented by the USA Freedom Act was how many levels of data could be retrieved. Under the original Section 215 program, three hops – the targeted person, the people they called and the people the second level called – were part of requests. The 2015 law changed this to “only” two hops, which still gave a vast amount of data: “In 2018, the government obtained a relatively low number of ISA court orders – 14 – and collected a large number of CDRs – more than 434 million, including an unknown number of duplicates, involving 19 million phone numbers.” (p 1)

That is – out of 14 requests for information, phone companies gave the NSA information on over 434 million phone calls involving 19 million phone numbers.

Despite this, the program simply did not work as an anti-terrorism technique.  CDRs were only cited in 15 intelligence reports over 4 years (p 2). From that, only two provided “unique information” to the FBI. Of those two, the FBI “vetted an individual, but, after vetting, determined that no further action was warranted.” (p 2)

While the NSA claims that it shut down the CDR program in 2019, the fact remains that the NSA, CIA, FBI and police forces around the country continue to spy on people across the world, with no respect for the Fourth Amendment rights of people in the United States or for the sovereignty of other nations. The shutdown was not a result of “righting a wrong” but in fact a response to growing public and political pressure.