Cruz & Rubio’s Confusing USA Freedom Exchange

A few reporters have asked me about a slightly odd exchange between GOP presidential hopefuls Marco Rubio and Ted Cruz at last night’s primary debate, so I thought it might be useful to write up a quick explanation of what this particular spat was about:

CRUZ: What [Marco Rubio] knows is that the old [NSA bulk telephony] program covered 20 percent to 30 percent of phone numbers to search for terrorists. The new program covers nearly 100 percent. That gives us greater ability to stop acts of terrorism, and he knows that that’s the case.

RUBIO: Dana, may I interject here?

BASH: Senator — Senator — Senator Rubio, please respond.

RUBIO: Let me be very careful when answering this, because I don’t think national television in front of 15 million people is the place to discuss classified information. So let me just be very clear. There is nothing that we are allowed to do under this bill that we could not do before.

While it sounds as though these are contradictory claims, it turns out they’re both probably, well, at least sort of right. As reported by the Washington Post way back in February 2014, the NSA bulk telephony program went from initially collecting nearly all domestic telephone records to vacuuming up 30 percent or less by the summer of 2013 — purportedly because at some point the agency stopped ingesting most cellular phone records. Precisely what happened is a bit vague: It’s reasonably clear from both declassified FISC opinions and the Privacy and Civil Liberties Oversight Board’s report on the 215 program that the program did include mobile telephony call detail records for much of its history. One intuitively plausible explanation for the drop-off is that, while the PCLOB report alludes to NSA scrubbing location information from cell records, the explicit prohibition on gathering such “cell site and sector” data added by the FISC to bulk 215 orders issued in 2013 changed things. Because 215 previously provided only for the acquisition of existing business records, but not the creation of new records — such as records of call info purged of location data — some carriers may have been either unwilling or unable to comply with the new records orders as applied to mobile telephony records. The USA Freedom Act explicitly provides for data to be produced in a format specified by the government, and requires carriers to provide the government with any “technical assistance” needed to conduct queries, which would resolve any such obstacles, assuming they had not already been dealt with by that point. Thus, Cruz could be right that, when compared with at least the summer 2013 iteration of the bulk telephony program, the successor program authorized by USA Freedom would allow the NSA to run queries across the entirety of the calling records held by companies, rather than the more limited subset of (mostly landline) records government had then been collecting under the 215 authority. At the same time, of course, the quantity of records actually held by the government would nevertheless be drastically reduced, because they would only receive the much smaller number of records actually responsive to specific queries.

Nevertheless, Rubio could be right that, in a different sense, there is “nothing we are allowed to do under this bill that we were not allowed to do before.” That’s not literally entirely accurate, since the language allowing government to specify the format of records and requiring the provision of “technical assistance” are indeed new. But the old version of Section 215 clearly did, in general, allow the government to obtain cell phone records — as, indeed, do many other authorities, including National Security Letters. While NSA was apparently, at least temporarily, not obtaining such records under this one particular program for a variety of reasons, they certainly had the legal authority to obtain cellular call detail records — and, indeed, had even previously obtained call records including location information — pursuant to Section 215 and a host of other authorities. In short, even if Cruz is right that USA Freedom helps bring cell records back within the scope of the program that will replace NSA’s bulk collection, Rubio can simultaneously be correct to say there’s nothing qualitatively new on that score. When the government obtains cellular telephony records under this new program, it will do so pursuant to specific, targeted Section 215 orders — something that the government has clearly had the ability to do all along.

One could equally easily say they’re both wrong about what’s actually significant here. Because the government could always get targeted 215 orders for cell records — and had already recently begun obtaining such orders for queries of the bulk database — what they’re really gaining in practice from USA Freedom is not new access to a broader scope of records, but a streamlined ability to rapidly get such records pertaining to contacts of targets, from diverse carriers. To the extent Cruz implies that 70 percent of phone records were previously entirely out of bounds, that’s misleading and inaccurate. More fundamentally though, Rubio was certainly wrong to suggest either that the NSA had “lost” anything substantively — or, for that matter, that the program was particularly operationally valuable, given that every independent review has concluded otherwise. 

About the Author(s)

Julian Sanchez

Senior Fellow at the Cato Institute, contributing Editor for Reason magazine. Member of the editorial board at Just Security. You can follow him on Twitter (@normative).