The NSA's frontmouth, the Office of the Director of National Intelligence, is burying news again. Not that it could help it. Normally, the ODNI likes to do its document dumps (most often consisting of documents ordered out of its hands by federal judges presiding over FOIA lawsuits) on Friday afternoons or shortly before a holiday to buy itself some response time before dealing with journalists and Congressional committees.
In this case, it delivered its latest news on Black Friday, while most of America was either out shopping or covering the story of Americans shopping for the local newsjobber. The timing would be suspect if it weren't for the fact that the NSA's bulk phone metadata program ended (at least in this form) at 11:59 PM Saturday night.
On June 2, 2015, Congress passed and the President signed the USA FREEDOM Act of 2015. The Act reauthorized several important national security authorities; banned bulk collection under Section 215 of the USA PATRIOT Act, under the pen register and trap and trace provisions found in Title IV of Foreign Intelligence Surveillance Act (FISA), or pursuant to National Security Letters; adopted the new legal mechanism proposed by the President regarding the targeted production of telephony metadata; made significant modifications to proceedings before the FISC; and built on the U.S. Government’s unprecedented transparency about intelligence activities. With respect to the new mechanism for the targeted production of telephony metadata, to allow sufficient time to implement a new system while at the same time avoiding any lapse in a national security program, the USA FREEDOM Act provided for a 180-day transition period during which the existing NSA bulk telephony metadata program may continue.
The six months are up and so is the NSA's Section 215 collection. While this means phone records will be held where they've always been held (phone companies) and the NSA must now approach providers with FISA court orders, this does not mean the NSA will no longer be collecting phone records in bulk. It just means it won't be doing this under those particular authorities (Section 215, PR/TT provisions, NSLs). It still has plenty of options.
For one, it appears to have access to more records than it used to under Section 215. From the fact sheet:
[T]he overall volume of call detail records subject to query pursuant to court order is greater under USA FREEDOM Act.
This could mean the new method (approaching phone companies directly) may give the NSA access to records it couldn't obtain under Section 215, like additional cell phone records or other communications methods like VOIP. In other words, the requests will be more targeted but capable of obtaining a greater variety of records responsive to the court-approved identifiers.
As I've said before, I suspect the NSA was willing to let Section 215 provide bus traction for the administration's minimal surveillance reform efforts
. As long as everyone kept worrying about the bulk phone metadata (subject of multiple lawsuits
that are now basically moot as far as the courts are concerned), the NSA would be able to keep its multiple other, more intrusive programs intact. As Marcy Wheeler notes, this program may be dead, but it doesn't mark the end of the NSA's bulk phone records collection
Just a tiny corner of the phone dragnet will shut down, and the government will continue to collect “telephony metadata records in bulk … including records of both U.S. and non-U.S. persons” under EO 12333. Hypothetically, for every single international call that had been picked up under the Section 215 dragnet and more (at a minimum, because NSA collects phone records overseas with location information), a matching record has been and will continue to be collected overseas, under EO 12333.
They’re still collecting your phone records in bulk, not to mention collecting a great deal of your Internet records in bulk as well.
The DNI himself, James Clapper, threw his weight
behind reforming this high-profile but ultimately minimal part of the NSA's dragnet. That should have been indication enough that killing off the Section 215 program wouldn't severely limit the NSA's surveillance options, despite the occasional bit of FUD directed at legislators (or parroted by them).