Congressional “Reforms” Made NSA Spying Worse

The USA Freedom Act was sold as pledge to end NSA’s bulk collection program concerning of metadata. However, this law didn’t end bulk collection of metadata. It shifted the responsibility to telecommunications providers. The result of this law, has actually increased the spying efficiency of the NSA.

In other words, the promised “reform” made NSA spying worse.

Medadata is a critical key in an investigation or dragnet spying. This data can include file type, when it was created, who created it, who it was sent to, and can even include where on the device that information is stored. This data was one of the key elements sought out in the Patriot Act.

The Lawfare Blog, quickly described the Patriot Act.

“The way the program (often referred to as the “Section 215” program after the provision in the statute) worked, in simple terms, was that NSA would collect the records and search them to see with whom a suspected international terrorist had been in telephone contact, including individuals inside the United States. When NSA identified additional contacts, it provided these tips to the FBI. In certain instances, the tips have provided valuable information in FBI terror plot investigations.”

The Patriot Act Section 215 was used to collect metadata records. Remember this isn’t a few bits of metadata, the NSA’s mission was to collect it all, and that mission became the agency’s own problem. As the records piled up, not enough analysts were able to sift through it all. This pile of collected records is known as the “haystack”.

When challenged with the legality of dragnet surveillance, the NSA would invariably say, “the N.S.A. uses the word ‘acquire’ only when it pulls information out of its gigantic database of communications and not when it first intercepts and stores the information.” Basically, until an analyst utilized the information collected, the data was not considered seized. The NSA used this word-game as an escape valve to say that it wasn’t breaking the law set by the Fourth Amendment.

This quote by John Brennan in 2013 was also hint at the inefficiency of the NSA.

In an ABC News article, the deputy director of the NSA reported on the system used to sift through records under the Patriot Act.

“On the technical side, Chris Inglis, who served as the NSA’s deputy director until January 2014, recently told ABC News that when major telecommunications companies previously handed over customer records, the NSA “just didn’t ingest all of it.”

“[NSA officials] were trying to make sure they were doing it exactly right,” he said, meaning making sure that the data was being pulled in according to existing privacy policies. The metadata also came in various forms from the different companies, so the NSA had to reformat much of it before loading it into a searchable database.

Both hurdles meant that the NSA couldn’t keep up, and of all the metadata the agency wanted to be available for specific searches internally, only about a third of it actually was.”

However, that has changed. The USA Freedom Act is actually much better for the NSA than the Patriot Act was. It has increased efficiency of spying and made it easier to sort through records.

“The USA Freedom Act ended the NSA’s bulk collection of metadata but charged the telecommunications companies with keeping the data on hand. The NSA and other U.S. government agencies now must request information about specific phone numbers or other identifying elements from the telecommunications companies after going through the Foreign Intelligence Surveillance Act (FISA) court and arguing that there is a ‘reasonable, articulable suspicion’ that the number is associated with international terrorism.

“As a result, the NSA no longer has to worry about keeping up its own database and, according to Inglis, the percentage of available records has shot up from 30 percent to virtually 100. Rather than one internal, incomplete database, the NSA can now query any of several complete ones.

:The new system ‘guarantees that the NSA can have access to all of it,’ Inglis said.” [Emphasis added]

The ABC article continues with more bad news.

“Mark Rumold, a senior staff attorney at the Electronic Frontier Foundation, told ABC News he doesn’t have much of a problem with the NSA’s wider access to telephone data, since now the agency has to go through a ‘legitimate’ system with ‘procedural protections’ before jumping into the databases.

“‘Their ability to obtain records has broadened, but by all accounts, they’re collecting a far narrower pool of data than they were initially,’ he said, referring to returns on specific searches. ‘They can use a type of legal process with a broader spectrum of providers than earlier. To me, that isn’t like a strike against it. That’s almost something in favor of it, because we’ve gone through this public process, we’ve had this debate, and this is where we settled on the scope of the authority we were going to give them.’”

It appears the the EFF has been lulled into a false sense of security by the so-called reforms. It seems rather foolish to believe that “procedural protections” are actually limiting spying.

I am saddened by EFF’s current response. I can understand having an attachment to a bill that becomes law that you endorse and work hard for. However, when the USA Freedom Act was amended there was a chance that organization could have tried to kill the bill or drop endorsement. Another option would have been to let the Patriot Act to expire. There was enough support to do so. They decided to stay the course, instead.

On the other hand, maybe I should thank EFF, because now maybe the NSA can finally admit that spying is illegal thanks to the USA Freedom Act. This act brings us back to John Brennans 2013 excuse for legality of the bulk collection in the first place. Compared to 2013, the records are 100% acquired now. So is it finally officially illegal in the NSA’s eye?

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Kelli Sladick

Tenth Amendment Center and OffNow.org volunteer and blogger.

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From the Tenth Amendment Center Original Story