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“The candle is not worth the flame” : Was FISA’s Section 215 Worth
it ? Or Even Effective ?


The National Security Agency (NSA) has
formally recommended terminating its controversial phone and text surveillance
program, according to the Wall Street Journal.[1] The program has been frequently
criticized for violating Fourth Amendment protections against warrantless
search and seizure. The program has also been criticized for its lack of
transparency, including most infamously Director of National Intelligence James
Clapper’s later-recanted statement in Congressional testimony before Senator
Ron Wyden that the NSA did not collect any type of data on Americans.[2] Beyond these criticisms, legal and
logistical hurdles in recent years have reportedly encumbered the program. “The
candle is not worth the flame,” a senior intelligence official told the Journal.


Section 215, “Access to Records and Other
Items under the Foreign Intelligence Surveillance Act,” has been one of the
most contentious pieces of legislation to come out of the 9/11 era.  It
was initially enacted as part of the USA PATRIOT Act of October 2001. Congress
later modified it via the USA FREEDOM Act in 2015, following the political
storm caused by the Edward Snowden leaks of 2013. In 2013, former NSA Director
General Keith Alexander stated that Section 215 had prevented approximately ten
terrorist attacks.[3]


The provisions under Section 215 are currently
set to expire in December 2019 but some observers point out that technology
changes and shifts in the nature of foreign threats have already reduced the
provision’s effectiveness substantially. These changes include the dramatic
rise of cellular technology over landlines and the use of more advanced
switches that make it easier to locate known individuals. Other differences
over time have been the looser structure of groups like ISIL and the
non-telephone communications methods (Internet, WhatsApp, etc.) they use that
do not leave the kinds of call record data that Section 215 collection
captures.


As the telephone metadata collection program
approaches its final days, the Cyber Vault has pulled together a range of
materials that chart its legislative origins and evaluate it from the
perspective of effectiveness, legal and privacy concerns, and other
considerations.


Legislative Background:


U.S. Congress,
Public Law 95-511, Foreign Intelligence Surveillance Act of 1978, October
25, 1978. Unclassified.


U.S.
Congress, Public Law 107-56, “Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT
Act) Act of 2001,” October 26, 2001. Unclassified.


U.S.
Congress, Public Law 114-23, “Uniting and Strengthening America by Fulfilling
Rights and Ensuring Effective Discipline over Monitoring Act of 2015” (USA
FREEDOM Act), June 2, 2015. Unclassified.


Assessments & Reviews of Section 215 Authorities, Pre-Snowden:


Larry E.
Craig, Richard J. Durbin, John Sununu, Russell D. Feingold, Lisa Murkowski, Ken
Salazar, Chuck Hagel, John F. Kerry, and Barack Obama, letter to Dear
Colleague, December 14, 2005. Unclassified.


Elizabeth
B. Bazan, Gina Marie Stevens and Brian T. Yeh, Congressional Research
Service, Government Access to Phone Calling Activity and Related Records:
Legal Authorities, August 20, 2007. Unclassified.


Elizabeth B.
Bazan, Edward C. Liu, and Gina Stevens, Congressional Research
Service, Government Access to Phone Calling Activity and Related Records:
Legal Authorities, February 2, 2010. Unclassified.


President’s
Review Group on Intelligence and Communication Technologies, “Liberty and
Security in a Changing World,” December 12, 2012. Unclassified.


Assessments & Reviews of Section 215 Authorities, Post-Snowden:


Ron Wyden
and Mark Udall, U.S. Senate, “Wyden, Udall Question the Value and Efficacy
of Phone Records Collection in Stopping Attacks,” June 7, 2013.
Unclassified.


House
Committee on the Judiciary, “The Administration’s Use of FISA Authorities,”
July 17, 2013. Unclassified.


American
Civil Liberties Union et al. v. James R. Clapper, Keith B. Alexander, Charles
T. Hagel, Eric H. Holder, and Robert S. Mueller III – Declaration of Professor
Edward W. Felten in the United States District Court for the Southern District
of New York.


United
States Department of Justice Office of the Inspector General, A Review of the
FBI’s Use of Section 215 Orders: Assessment of Progress in Implementing
Recommendations and Examination of Use in 2007 Through 2009, May 2015.
Unclassified.


Edward
Liu, Andrew Nolan, and Richard Thompson, “Overview of Constitutional Challenges
to NSA Collection Activities,” May 21, 2015. Unclassified.


Office
of the Director of National Intelligence, “Fact Sheet: Implementation of the
USA FREEDOM Act of 2015,” November 27, 2015. Unclassified.


Congressional
Research Service, “Amendments to the Foreign Intelligence Surveillance Act (FISA)
Expiring on December 15, 2019,” April 11, 2016. Unclassified.


The
White House, Privacy in Our Digital Lives: Protecting Individuals and Promoting
Innovation, January 2017. Unclassified.
 


ODNI Usage Statistics:


Office
of the Director of National Intelligence, “Statistical Transparency Report
Regarding use of National Security Authorities, Annual Statistics for Calendar
Year 2013”, June 26 2014. Declassified.


Office
of the Director of National Intelligence, “Statistical Transparency Report
Regarding use of National Security Authorities, Annual Statistics for Calendar
Year 2014”, April 22 2015. Unclassified.


Office
of the Director of National Intelligence, “Statistical Transparency Report
Regarding use of National Security Authorities, Annual Statistics for Calendar
Year 2015”, April 30 2016. Unclassified.


Office
of the Director of National Intelligence, “Statistical Transparency Report
Regarding use of National Security Authorities, Annual Statistics for Calendar
Year 2016”, April 2017. Unclassified.


Office
of the Director of National Intelligence, “Statistical Transparency Report
Regarding use of National Security Authorities, Annual Statistics for Calendar
Year 2017”, April 2018. Unclassified.


Note


[1] Dustin Volz and Warren P. Strobel, “NSA Recommends Dropping Phone–Surveillance
Program,” Wall
Street Journal
, April 24, 2019


[2] Spencer Ackerman, “Clapper: I gave ‘erroneous’ answer
because I forgot about the Patriot Act,” The Guardian, July 2,
2013.


[3] General Keith Alexander, “Hearing of the House Permanent
Select Committee on Intelligence on How Disclosed NSA Programs Protect
Americans, and Why Disclosure Aids Our Adversaries,” June 18, 2013.

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