Memo|National Security   4 Minute Read

Making the Security Case for Surveillance Reform

Published May 21, 2015

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Takeaways

  • Reforming U.S. electronic surveillance programs is necessary to ensure we can both protect our nation and our values.
  • Section 215 bulk collection of metadata doesn’t just build a haystack, it creates a government monopoly on hay.
  • The U.S. government does not need to collect and hold metadata on every American in order to ensure that the nation is secure, but can request what it needs from companies.
  • Opponents of reform greatly exaggerate the importance of bulk collection of metadata to our nation’s security.

The time is running out for Congress to decide what to do about electronic surveillance and, in particular, what to do about Section 215 of the USA PATRIOT ACT, which the government claims authorizes the bulk collection of all Americans’ metadata. While metadata does not include the content of a communication, it would indicate the sender, recipient, time and duration, allowing the government to build a detailed picture of an individual’s habits and associates. The government then searches this database for counterterrorism purposes. This program has been so controversial that President Obama called for the transition of the program so that the government no longer retains the data.

At the beginning of May, a federal appeals court rejected the government’s interpretation of Section 215, finding that the law didn’t authorize the bulk collection program. The court said that Congress would have to specifically authorize bulk collection in order for it to continue.

On May 13, the House overwhelmingly passed a bill (338-88 vote) that would reform the current system by replacing bulk collection with more targeted searches and imposing other safeguards against potential government abuse. The White House supports the bill and has said it would strengthen civil liberties and privacy protections while “preserving essential authorities that our intelligence and law enforcement professionals need to protect the nation.”

The White House has indicated that if Congress doesn’t act by May 22, it will begin shutting down the NSA program.

Now, with time running out the Senate must choose between two options:

  • Reform that program to keep the data out of the government’s hands while allowing it to request specific kinds of data from the companies that generate and hold it; or
  • Attempt to pass something different than the House, and watch all the 215 authorities, including bulk collection, expire.

Opponents of reform argue that the program is necessary for national security and safeguards proposed for the bulk collection program would undermine counterterrorism efforts. Third Way believes those claims are greatly exaggerated, and that reform of the Section 215 bulk collection program is a necessary step to ensure both the nation and our values are protected.

Claim: Section 215 bulk collection has thwarted other terrorist attacks.

Rebuttal: Opponents of reform have repeatedly exaggerated Section 215 bulk collection’s usefulness. Section 215 is just one out of many intelligence programs used to keep the country safe.

According to testimony from NSA officials, there is only one case where the use of 215 metadata was uniquely valuable—and it was not a terrorist attack in the United States—it was the case of Basaaly Moalin, a cab driver who was convicted of material support for sending $8,500 to the Somalia-based and Al Qaeda-affiliated terrorist group Al Shabaab.

The President’s Review Group of Surveillance programs found that Section 215 bulk collection was “not essential to preventing attacks and could have been readily obtained in a timely manner using conventional 215 orders,” and the panel called for companies to retain the data rather than giving it over to the government in bulk.

Claim: Section 215 bulk collection, had it existed, would have stopped 9/11.

Rebuttal: Congress’ own review, the Joint Inquiry into Intelligence Community Activities Before and After the Terrorist Attacks of 9/11, found that the biggest intelligence failure leading to the attacks was a failure of communication between agencies—not a lack of information needed to prevent the attacks. The Administration’s own Privacy and Civil Liberties Board reached a similar conclusion.1

The 9/11 Commission review found that the intelligence community failed to correctly analyze the information it already had to put the pieces together.

Claim: Section 215 bulk collection is necessary to stop future terrorist attacks.

Rebuttal: On its own, Section 215 bulk collection cannot be used to identify or stop future terrorist attacks.

Section 215 is a program that gathers non-content information, so it would identify links between people and patterns. These links, absent some other intelligence to indicate particular malicious activity, are not enough to identify intent to commit terrorist attacks. For example, even though the program was designed to identify links of terrorists in the U.S., it did not identify or disrupt the Boston Marathon Bombings.

If, however, the government has indication of particular malicious activity, it can use those identifiers to request related data from the companies who hold it, rather than unnecessarily leaving all metadata data of all Americans in the government’s hands.

Claim: Our security is strengthened by bulk collection.

Rebuttal: Our security—in particular our economic security—pays a price for leaving these programs unchecked. U.S. companies operating around the world have seen a backlash from their international customers and have become more adversarial towards U.S. government requests. The Information Technology & Innovation Foundation (ITIF) published a report predicting that the U.S. cloud computing industry faces potential losses nearing $35 billion by 2016 because of the massive information leak on the NSA’s surveillance programs.

Non-U.S. persons and companies are growing increasingly wary of doing business with U.S. companies lest they be subjected to the American government’s broad surveillance laws. ITIF conducted a survey and found that for non-U.S. residents, 10 percent of respondents indicated that they had cancelled a project with a U.S.-based cloud computing provider; 56 percent said that they would be less likely to use a U.S.- based cloud computing service.

Conclusion

Support for reforming Section 215 metadata collection has been growing and with good reason. This bulk collection sweeps up information on innocent Americans and, on its own, has not contributed to successful counterterrorism activities. But it must be remembered that reforming Section 215 is not meant to completely strip the U.S. Government of much-needed tools. Members of Congress now have the chance to put an end to the government's ability to possess Americans' data for an indefinite amount of time. We can let the government build specific haystacks, but let’s end the government monopoly on hay.

  1. United States, Privacy and Civil Liberties Oversight Board, "Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court," Report. Accessed May 20, 2015. Available at: http://permanent.access.gpo.gov/gpo45397/PCLOB-Report-on-the-Telephone-Records-Program.pdf.

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