The NSA's bulk metadata collection authority just expired. What now?

The language in the US Justice Department statement is far from inspiring, written in bland legalese, but it still represents an important victory for the whistleblower Edward Snowden.
The statement, dated 28 November 2015, says: “Final temporary reauthorization of the Section 215 bulk telephony metadata data program in the US expires.”
What that means is that from Saturday, the National Security Agency will no longer directly hold information about the phone calls of millions of US citizens.
The USA Freedom Act, passed in the summer, allowed the NSA a 180-day transition period to sort out arrangements. That period expired on Saturday.
It is modest change but it is at least a change, raising public awareness of the scale of government surveillance and opening the way for privacy campaigners to chip away in hopes of further reforms.

What prompted the change?

The reform under the Freedom Act can be traced directly back to a document leaked by Snowden and reported in the Guardian in June 2013 by Glenn Greenwald.
The document was a top secret court order showing the NSA was collecting the phone records of citizens both in the US and overseas in bulk and indiscriminately. The order was granted by a secret government body, the Foreign Intelligence Surveillance (Fisa) court.
It contradicted a statement only months earlier by James Clapper, director of national intelligence, to a Senate committee claiming there was no such collection of the records of US citizens.

Did this amount to mass surveillance?

 

The intelligence agencies hate the description “mass surveillance” and insist what they are doing is bulk collection of data. They argue that although they gathered all this material, they only looked at a small part of it and, crucially, did not look at content.
Privacy campaigners counter that just by having access to such huge volumes of data on every individual citizen amounts to mass surveillance and an invasion of privacy. They also argue that even if the agencies are not looking at content – listening to phone calls – they can build up a detailed profile of an individual just on the basis of who was called, the location, time and length of call.

What does the Freedom Act do?

Instead of being held directly by the NSA, phone data will remain with the telecom companies. The NSA will have to go to the Fisa court to get access.
There is also a change to the Fisa court, which will become a little less secret, being forced to declassify some information about its rulings and to allow, in some cases, outside bodies to mount challenges.

How important is this reform

 

It is a first step but a modest one. The problem – and it is a major one – is the reform applies only to phone records. The NSA can continue to harvest bulk communications from the internet and social media.
Snowden called the act historic but identified some of the changes as cosmetic. The American Civil Liberties Union described it as a “milestone” but cautioned about the wide range of surveillance powers the NSA and other agencies still enjoy.

Have terrorist attacks such as the one in Paris forced privacy campaigners into a rethink?

 

Privacy campaigners have argued they are not opposed to targeted surveillance, in which suspects are monitored. Their complaint is with bulk data collection and its indiscriminate nature.
The argument of the intelligence agencies is that if there is a terrorist attack or a kidnapping, they have to be able to quickly access all the data in order to see if they can find any communications that might be related. If they have one name, they want to see who that individual has been in contact with.
That seems, at first glance, a reasonable request. But a privacy and civil liberties review body set up by Barack Obama found no evidence that bulk data collection had made a difference in a single case.
“We have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation,” it reported.
In terrorism case after terrorism case since 9/11, at least some of those involved were already known to intelligence agencies, being treated as suspects or appearing on watch lists as individuals of concern. This was the case too in the Paris attacks, in which some of the killers were already known to the French intelligence agencies.

What is happening elsewhere around the world?

 

Modest though the USA Freedom Act is, it is an improvement on what is happening elsewhere. Governments in France and the UK have introduced – or are in the process of introducing – legislation that gives even more surveillance powers to intelligence agencies.
The UK has a proposed bill that enshrines all the surveillance powers it has been employing in the dark since at least 2001 and adds a few more. Unlike the US, the bill permits bulk collection of phone records.