“The candle is not worth the flame”: Was FISA's Section 215 Worth it? Or Even Effective?

The National Security Agency (NSA) has formally recommended terminating its controversial phone and text surveillance program, according to the Wall Street Journal.[1] The program has been frequently criticized for violating Fourth Amendment protections against warrantless search and seizure. The program has also been criticized for its lack of transparency, including most infamously Director of National Intelligence James Clapper's later-recanted statement in Congressional testimony before Senator Ron Wyden that the NSA did not collect any type of data on Americans.[2] Beyond these criticisms, legal and logistical hurdles in recent years have reportedly encumbered the program. “The candle is not worth the flame,” a senior intelligence official told the Journal.

Section 215, “Access to Records and Other Items under the Foreign Intelligence Surveillance Act,” has been one of the most contentious pieces of legislation to come out of the 9/11 era.  It was initially enacted as part of the USA PATRIOT Act of October 2001. Congress later modified it via the USA FREEDOM Act in 2015, following the political storm caused by the Edward Snowden leaks of 2013. In 2013, former NSA Director General Keith Alexander stated that Section 215 had prevented approximately ten terrorist attacks.[3]

The provisions under Section 215 are currently set to expire in December 2019 but some observers point out that technology changes and shifts in the nature of foreign threats have already reduced the provision’s effectiveness substantially. These changes include the dramatic rise of cellular technology over landlines and the use of more advanced switches that make it easier to locate known individuals. Other differences over time have been the looser structure of groups like ISIL and the non-telephone communications methods (Internet, WhatsApp, etc.) they use that do not leave the kinds of call record data that Section 215 collection captures.

As the telephone metadata collection program approaches its final days, the Cyber Vault has pulled together a range of materials that chart its legislative origins and evaluate it from the perspective of effectiveness, legal and privacy concerns, and other considerations.

Legislative Background:

U.S. Congress, Public Law 95-511, Foreign Intelligence Surveillance Act of 1978, October 25, 1978. Unclassified.

U.S. Congress, Public Law 107-56, “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001,” October 26, 2001. Unclassified.

U.S. Congress, Public Law 114-23, “Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline over Monitoring Act of 2015” (USA FREEDOM Act), June 2, 2015. Unclassified.

Assessments & Reviews of Section 215 Authorities, Pre-Snowden:

Larry E. Craig, Richard J. Durbin, John Sununu, Russell D. Feingold, Lisa Murkowski, Ken Salazar, Chuck Hagel, John F. Kerry, and Barack Obama, letter to Dear Colleague, December 14, 2005. Unclassified.

Elizabeth B. Bazan, Gina Marie Stevens and Brian T. Yeh, Congressional Research Service, Government Access to Phone Calling Activity and Related Records: Legal Authorities, August 20, 2007. Unclassified.

Elizabeth B. Bazan, Edward C. Liu, and Gina Stevens, Congressional Research Service, Government Access to Phone Calling Activity and Related Records: Legal Authorities, February 2, 2010. Unclassified.

President’s Review Group on Intelligence and Communication Technologies, “Liberty and Security in a Changing World,” December 12, 2012. Unclassified.

Assessments & Reviews of Section 215 Authorities, Post-Snowden:

Ron Wyden and Mark Udall, U.S. Senate, "Wyden, Udall Question the Value and Efficacy of Phone Records Collection in Stopping Attacks," June 7, 2013. Unclassified.

House Committee on the Judiciary, “The Administration’s Use of FISA Authorities,” July 17, 2013. Unclassified.

American Civil Liberties Union et al. v. James R. Clapper, Keith B. Alexander, Charles T. Hagel, Eric H. Holder, and Robert S. Mueller III – Declaration of Professor Edward W. Felten in the United States District Court for the Southern District of New York.

United States Department of Justice Office of the Inspector General, A Review of the FBI's Use of Section 215 Orders: Assessment of Progress in Implementing Recommendations and Examination of Use in 2007 Through 2009, May 2015. Unclassified.

Edward Liu, Andrew Nolan, and Richard Thompson, “Overview of Constitutional Challenges to NSA Collection Activities,” May 21, 2015. Unclassified.

Office of the Director of National Intelligence, “Fact Sheet: Implementation of the USA FREEDOM Act of 2015,” November 27, 2015. Unclassified.

Congressional Research Service, “Amendments to the Foreign Intelligence Surveillance Act (FISA) Expiring on December 15, 2019,” April 11, 2016. Unclassified.

The White House, Privacy in Our Digital Lives: Protecting Individuals and Promoting Innovation, January 2017. Unclassified.

ODNI Usage Statistics:

Office of the Director of National Intelligence, "Statistical Transparency Report Regarding use of National Security Authorities, Annual Statistics for Calendar Year 2013", June 26 2014. Declassified.

Office of the Director of National Intelligence, "Statistical Transparency Report Regarding use of National Security Authorities, Annual Statistics for Calendar Year 2014", April 22 2015. Unclassified.

Office of the Director of National Intelligence, "Statistical Transparency Report Regarding use of National Security Authorities, Annual Statistics for Calendar Year 2015", April 30 2016. Unclassified.

Office of the Director of National Intelligence, "Statistical Transparency Report Regarding use of National Security Authorities, Annual Statistics for Calendar Year 2016", April 2017. Unclassified.

Office of the Director of National Intelligence, "Statistical Transparency Report Regarding use of National Security Authorities, Annual Statistics for Calendar Year 2017", April 2018. Unclassified.