Michael Swartz / April 26, 2019

NSA Metadata Collection May Be a Thing of the Past

The agency is now calling for an end to the PATRIOT Act’s Section 215 data program.

Since we all learned back in 2013 that the federal government was collecting metadata from phone calls placed by average citizens without terrorist intentions, the PATRIOT Act’s Section 215 has been under fire by civil libertarians who claim it’s unnecessary and ineffective as a tool for stopping terrorism.

The Section 215 practice was temporarily thwarted by a 2015 appellate court ruling that restricted the government’s PATRIOT Act powers, but Congress quickly created the authorization later that year through the USA Freedom Act to resume the practice. Unfortunately for Congress, overzealous telecommunications companies botched the program by giving away more information than was required. That led to the purging of millions of records last year and shifted sentiment even farther away from continuing the program — a program that has yet to have been proven to even help stop a domestic terrorist act.

That’s not to say that Congress won’t continue the Section 215 program for fear of being dubbed “soft on terrorism.” But those who run it at the NSA now favor scrapping the telephone spying, arguing that the program is “difficult to manage” and “more a burden than a useful tool,” according to a Wall Street Journal report. One insider claimed the Section 215 program has been shuttered for several months already.

Since Section 215 is already fighting for its very existence, it may seem like overkill to propose a bill to do away with it. Last month, however, several of the more libertarian members of Congress introduced the Ending Mass Collection of Americans’ Phone Records Act. It’s a bill that Sen. Rand Paul, one of its sponsors, says “permanently stops one of the sprawling surveillance state’s most intrusive overreaches and is the first step in a movement to reclaim the constitutional liberties sacrificed by the overreaching provisions of the PATRIOT Act.” Unlike a simple failure to reauthorize, though, the bill would be a permanent repeal of Section 215-style authority.

Some, though, argue that ending the Section 215 program would be a hollow victory — not because the idea of domestic spying has lost its appeal to those would-be snoops within the system, but because technology has made the practice all but obsolete. Reason’s Scott Shackford cautions, “Should the White House accept the NSA’s recommendation here and let the USA Freedom Act expire, that makes it all the more important that we pay attention to governments’ efforts across the world to force social media platforms and app makers to introduce backdoors to encryption or some other form of structural weakness that would allow government spies to access our private communications without our knowledge.” One example given by Shackford is Australia, where that government is actively attempting to gain a bypass to encryption programs. We’d also note that the FBI has demanded a bypass to Apple’s iPhone encryption.

It’s often been said that the Constitution is not a suicide pact, and there have been times when its protections took a back seat to ensuring national security. Yet the Section 215 program’s lack of demonstrable success coupled with our natural desire to communicate free of government snooping may be enough to tip the scale just a bit back toward freedom. While the Long War is ongoing, its battlefield has completely changed over the last 18 years. Technology now enables “lone wolf” perpetrators who don’t need to call overseas for marching orders, and it’ll take other means to sniff out their schemes.

In short, we’ve evolved from and made unnecessary this phase of government spying. Let’s see if President Trump and Congress concur.

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