Connecting the Dots: Assessing the Effectiveness of Bulk Phone Records Collection

[Editor’s note: This morning we are enthusiastic to have the opportunity to publish on Just Security an extremely insightful and thoughtful paper on the effectiveness of the Section 215 metadata program by Marshall Erwin, currently a fellow at the Hoover Institution and previously a counterterrorism analyst in the intelligence community, an intelligence specialist at the Congressional Research Service, and a professional staff member on the Senate Homeland Security and Government Affairs Committee. Marshall also graciously agreed to provide the following guest post as an introduction to his paper.]

Judge William Pauley, in his late December court opinion about NSA’s bulk phone records collection, stated that the effectiveness of that collection “cannot be seriously disputed.” Less than two weeks earlier, Judge Richard Leon, citing a lack of evidence that bulk records collection had actually stopped a terrorist attack, seriously disputed the effectiveness of this intelligence program.

Today’s publication of Connecting the Dots: Analysis of the Effectiveness of Bulk Phone Records Collection is an effort to cut through this morass. In the spirit of Ryan’s recent thoughtful post calling for a candid assessment of the benefits of collection conducted under Section 215 of the USA PATRIOT ACT, I pooled the publicly available information about the effectiveness of this program. The paper provides an in-depth treatment of the two primary examples that the intelligence community has offered to demonstrate the value or prospective value of bulk phone records collection: a 2009 al-Qaeda plot to bomb the New York City subway and the case of 9/11 hijacker Khalid al-Mihdhar.

My conclusion is simple: neither of these cases demonstrates that bulk phone records collection is effective. Those records did not make a significant contribution to success against the 2009 plot because at the point at which the NSA searched the bulk records database, the FBI already had sufficient information to disrupt the plot. It is also unlikely that bulk collection would have helped disrupt the 9/11 attacks, given critical barriers to information sharing and as demonstrated by the wealth of information already available to the intelligence community about al-Mihdhar.

My analysis shows that these two key cases cannot justify bulk phone records collection, but a justification that is both more compelling and more troubling has also been advanced—the “synthesis” line of reasoning. Good intelligence work, the argument goes, is often a result of a synthesis of different tools, and the absence of a specific example of the effectiveness of bulk records collection should not therefore be taken as an indication of the program’s lack of value. This is in some sense true—good intelligence work is often the result of a synthesis of different tools, challenging our ability to assess the value of any specific tool. But the argument also provides policymakers and the intelligence community with a means to avoid asking hard questions about programs that may be ineffective. They can and should ask those questions.

The lesson that is emerging from the debate about bulk records collection is that in an age of austerity and with 9/11 receding into history, a failure to justify our current intelligence tools and structure will itself threaten the integrity of our counterterrorism efforts, as Americans look with growing skepticism at the entire intelligence apparatus. This is exactly what we see occurring with NSA now as important programs for national security have come under as much criticism as those of marginal value. If we want to ensure the long-term viability of counterterrorism efforts and our continued success against al-Qaeda, we must increasingly prune away those programs and activities that have not helped keep us safe. 

About the Author(s)

Marshall Erwin

Head of Trust at Mozilla, Non-Residential Fellow at the Center for Internet and Society at Stanford Law School, Former Intelligence Specialist at the Congressional Research Service, Former Counterterrorism Analyst