New Report Questions Value of Section 702 Warrantless Surveillance

Today over at the New America Foundation, researchers have published a paper examining the role of dragnet programs in the United States’ counterterrorism operations. The paper provides data on the effectiveness of bulk phone records collection and breaks some new ground on whether warrantless content surveillance under section 702 of the FISA Amendments Act provides valuable intelligence.

The researchers conducted an in-depth analysis of 225 individuals recruited by al-Qaeda or a like-minded group or inspired by al-Qaeda’s ideology and charged in the United States with an act of terrorism since September 11th. The New America Foundation report finds that bulk collection of American telephone metadata played an identifiable role in initiating no more than 1.8 percent of these cases. This assessment follows on a number of recent looks at the effectiveness of the phone records collection under section 215 of the USA PATRIOT Act, including that of Just Security guest blogger and Hoover fellow Marshall Erwin and our own Ryan Goodman’s look at whether the collection could have prevented the attacks of September 11th.

The report also seriously examines the usefulness of warrantless content surveillance under Section 702 of the FISA Amendments Act. There’s been apparent agreement within the government that this surveillance, including collection from providers under the PRISM program, has been useful in counterterrorism efforts. Even reformers like Senators Ron Wyden and Mark Udall have said that the program has provided valuable intelligence, while pushing for changes that would close off “back door searches”, a loophole permitting suspicionless searches using U.S. person selection criteria post-collection. This new suggests section 702 is less valuable than we may have assumed given this consensus, finding that targeting the content of communications of of non-U.S. persons outside of the United States under Section 702 of the played a role in only 4.4 percent of examined terrorism cases.

Additionally, the group reviewed three of the key terrorism cases the government has cited to defend NSA bulk surveillance programs. This review revealed that government officials have exaggerated the role of the NSA in the cases against David Coleman Headley and Najibullah Zazi.

This report is a valuable addition to the conversation about suspicionless surveillance and its usefulness in counterterrorism operations.

A summary of findings and the full report are available. 

About the Author(s)

Jennifer Granick

Surveillance and Cybersecurity Counsel at the ACLU's Project on Speech, Privacy and Technology Follow her on Twitter (@granick).