Two Developments re Section 215: (i) Changes to the Section 215 Program and (ii) Program’s Scope is Currently More Limited than Originally Thought

In his speech last month on the U.S. signals intelligence programs, President Obama “directed the Attorney General to work with the Foreign Intelligence Surveillance Court so that . . .  the [Section 215] database can be queried only after a judicial finding, or in a true emergency” and reduced the degrees of separation the NSA could move from a targeted “identifier” from three “hops” to two.  According to a statement yesterday from DNI Clapper published to the Office of the DNI’s tumblr page icontherecord.tumblr.com (a very helpful resource), the FISC has now approved the government’s motion to implement these changes to the Section 215 telephony metadata program.  Ruchi covered this development this morning in News Roundup, but given its significance, it’s useful to flag and provide more details.  Here is the complete statement from the DNI:

FISC Approves Government’s Request to Modify Telephony Metadata Program
February 6, 2014

During his speech on Jan. 17, 2014, President Obama ordered a transition that will end the Section 215 bulk telephony metadata program as it currently exists, and establish a mechanism that preserves the capabilities we need without the government holding this bulk data. As a first step in that transition, the President directed the Attorney General to work with the Foreign Intelligence Surveillance Court to ensure that, absent a true emergency, the telephony metadata can only be queried after a judicial finding that there is a reasonable, articulable suspicion that the selection term is associated with an approved international terrorist organization. The President also directed that the query results must be limited to metadata within two hops of the selection term instead of three.

To put these two changes into effect, the Department of Justice filed a motion with the FISC to amend its most recent Jan. 3, 2014, primary order approving the production of telephony metadata collection under Section 215. Yesterday, the FISC granted the government’s motion. In addition, the FISC ordered the government to do a classification review by Feb. 17, 2014, of the Jan. 3 primary order, the government’s motion to amend that order, and the order granting the motion. Following completion of the review, the motion and two orders will be published as appropriate on the FISC’s website, and the Office of the Director of National Intelligence will post them to its website and icontherecord.tumblr.com.

James R. Clapper, Director of National Intelligence

Meanwhile, today we also learned of an additional development in the Section 215 program from Ellen Nakashima of the Washington Post.  According to the WaPo article, officials are now saying that the NSA’s Section 215 program collects only thirty percent of all Americans’ call records–contrary to earlier claims by officials that the NSA was collecting nearly all U.S. phone records.  Why the reason for this large discrepancy?  Well, according to the report, the NSA has been unable to keep pace with the “explosion of cellphone use” in recent years.

Nakashima writes:

“The National Security Agency is collecting less than 30 percent of all Americans’ call records because of an inability to keep pace with the explosion in cellphone use, according to current and former U.S. officials.

The disclosure contradicts popular perceptions that the government is sweeping up virtually all domestic phone data. It is also likely to raise questions about the efficacy of a program that is premised on its breadth and depth, on collecting as close to a complete universe of data as possible in order to make sure that clues aren’t missed in counterterrorism investigations.

In 2006, the officials said, the NSA was collecting nearly all records about Americans’ phone calls from a number of U.S. companies under a then-classified program, but as of last summer that share had plummeted to less than 30 percent.”

Rest assured though, we are told, that the government is working to improve on its 30% collection rate:

“The government is taking steps to restore the collection — which does not include the content of conversations — closer to previous levels. The NSA is preparing to seek court orders to compel wireless companies that currently do not hand over records to the government to do so, said the current and former officials, who spoke on condition of anonymity to discuss internal deliberations.”

We already know that the Section 215 program’s effectiveness is limited.  But given the government’s low percentage of total numbers collected, renewed skepticism of the ability of the program to truly be capable of serving its stated function is warranted, leaving one to question, as Edward Felten of Princeton University does in the article, “whether the rationale offered for the program is consistent with the way the program has been operating.” 

About the Author(s)

Thomas Earnest

Former Managing Editor of Just Security (2013-14) Follow him on Twitter (@thomasdearnest).