from the but-that's-because-the-government-has-so-many-other-options dept
The Snowden Effect continues. In addition to actual oversight finally being applied to surveillance programs, the breadth and scope of some programs continues to be narrowed. Some of this narrowing has been forced on the NSA by legislation. But some of it also appears to be shame-related. It's no longer as acceptable to harvest vast amounts of data domestically, apparently.
Shane Harris at The Daily Beast notes that the latest Inspector General's report [PDF] details a sharp decline in Section 215 requests since Snowden's debut leak in June 2013.
Between 2012 and 2014, that court approved 561 so-called “business records orders,” but that number dropped from a nine-year high of 212 in 2012 to 170 in 2014, a nearly 20 percent decrease, according to a review by the Justice Department’s inspector general.
The number fell again in 2015 to 142 orders.
If Snowden hadn't dumped the documents, the program would have remained unaltered and, most likely, requests would have continued to rise. Thanks to a forced "conversation" about domestic surveillance, the resulting USA Freedom Act, along with the appointment of an amicus to make FISA court proceedings a tiny bit more adversarial, the government has scaled back its requests for phone metadata and other "third party" records. Having to target first and request second kind of has that effect.
The other effect leading to this decline is also related to the document leaks. The NSA -- and the FBI, which actually makes the requests for data -- found itself an outcast in its own country. Fewer requests are apparently being made because it's no longer socially acceptable to do so.
A Justice Department official attributed the diminishing use of the program to the “stigma attached” to it after Snowden’s leaks.
Then again, this might just be a nice thing to say. The FBI and NSA have several other surveillance programs operating with less oversight and restrictions than the Section 215 program. Although officials claimed the program was essential when defending it against legislative efforts, there was hardly any evidence presented to back this assertion up. Even the OIG report notes as much, stating that FBI agents "could not identify any major case developments" from its business records collections. Even so, the FBI continues to believe the bulk collection of metadata still serves as a valuable "building block" of its investigations, even if it's ultimately an extraneous one.
The report also points out that the FBI routinely uses other processes to obtain these same records -- ones that are faster and don't require a trip to the FISA court. In between redactions, the OIG notes that the FBI opens "parallel investigations" and utilizes things like grand jury subpoenas to compel the production of business records, rather than routing this through the FISA court. Then there's the FBI's use of National Security Letters, which has showed no sign of slowing even when faced with additional public scrutiny.
Shane Harris points out that the Section 702 program, which harvests vast amounts of internet/email communications and data, is far more useful and far more powerful. That's up for renewal next year and it will be interesting to see how James Clapper's office -- and the FBI -- handle any obstacles standing in the way of a no-questions-asked reapproval. The intelligence community seemed willing to let Section 215 take center stage during the push to pass the USA Freedom Act -- a surveillance state scapegoat released to draw attention away from the NSA's more intrusive bulk collections. But the intel community isn't going to be as easily persuaded to dial back a program that targets platforms that facilitate communications on a much wider scale.