Why the Current Section 215 Reform Debate Doesn't Matter Much
The ACLU’s Chris Soghoian explains (time 25:52-30:55) why the current debate over Section 215 of the Patriot Act is just a minor facet of a large and complex bulk collection program by the FBI and the NSA.
There were 180 orders authorized last year by the FISA Court under Section 215 — 180 orders issued by this court. Only five of those orders relate to the telephony metadata program. There are 175 orders about completely separate things. In six weeks, Congress will either reauthorize this statute or let it expire, and we’re having a debate — to the extent we’re even having a debate — but the debate that’s taking place is focused on five of the 180, and there’s no debate at all about the other 175 orders.
Now, Senator Wyden has said there are other bulk collection programs targeted at Americans that the public would be shocked to learn about. We don’t know, for example, how the government collects records from Internet providers. We don’t know how they get bulk metadata from tech companies about Americans. We don’t know how the American government gets calling card records.
If we take General Hayden at face value — and I think you’re an honest guy — if the purpose of the 215 program is to identify people who are calling Yemen and Pakistan and Somalia, where one end is in the United States, your average Somali-American is not calling Somalia from their land line phone or their cell phone for the simple reason that AT&T will charge them $7.00 a minute in long distance fees. The way that people in the diaspora call home — the way that people in the Somali or Yemeni community call their family and friends back home — they walk into convenience stores and they buy prepaid calling cards. That is how regular people make international long distance calls.
So the 215 program that has been disclosed publicly, the 215 program that is being debated publicly, is about records to major carriers like AT&T and Verizon. We have not had a debate about surveillance requests, bulk orders to calling card companies, to Skype, to voice over Internet protocol companies. Now, if NSA isn’t collecting those records, they’re not doing their job. I actually think that that’s where the most useful data is. But why are we having this debate about these records that don’t contain a lot of calls to Somalia when we should be having a debate about the records that do contain calls to Somalia and do contain records of e-mails and instant messages and searches and people posting inflammatory videos to YouTube?
Certainly the government is collecting that data, but we don’t know how they’re doing it, we don’t know at what scale they’re doing it, and we don’t know with which authority they’re doing it. And I think it is a farce to say that we’re having a debate about the surveillance authority when really, we’re just debating this very narrow usage of the statute.
Further underscoring this point, yesterday the Department of Justice’s Office of the Inspector General released a redacted version of its internal audit of the FBI’s use of Section 215: “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,” following the reports of the statute’s use from 2002-2005 and 2006. (Remember that the FBI and the NSA are inexorably connected here. The order to Verizon was from the FBI, requiring it to turn data over to the NSA.)
Details about legal justifications are all in the report (see here for an important point about minimization), but detailed data on exactly what the FBI is collecting — whether targeted or bulk — is left out. We read that the FBI demanded “customer information” (p. 36), “medical and educational records” (p. 39) “account information and electronic communications transactional records” (p. 41), “information regarding other cyber activity” (p. 42). Some of this was undoubtedly targeted against individuals; some of it was undoubtedly bulk.
I believe bulk collection is discussed in detail in Chapter VI. The chapter title is redacted, as well as the introduction (p. 46). Section A is “Bulk Telephony Metadata.” Section B (pp. 59-63) is completely redacted, including the section title. There’s a summary in the Introduction (p. 3): “In Section VI, we update the information about the uses of Section 215 authority described [redacted word] Classified Appendices to our last report. These appendices described the FBI’s use of Section 215 authority on behalf of the NSA to obtain bulk collections of telephony metadata [long redacted clause].” Sounds like a comprehensive discussion of bulk collection under Section 215.
What’s in there? As Soghoian says, certainly other communications systems like prepaid calling cards, Skype, text messaging systems, and e-mails. Search history and browser logs? Financial transactions? The “medical and educational records” mentioned above? Probably all of them — and the data is in the report, redacted (p. 29) — but there’s nothing public.
The problem is that those are the pages Congress should be debating, and not the telephony metadata program exposed by Snowden.
EDITED TO ADD: Marcy Wheeler is going through the document line by line.