The Trump administration is planning to bring an end to a National Security Agency bulk metadata collection program first exposed by whistleblower Edward Snowden, an aide to House Minority Leader Kevin McCarthy (R-CA) told media.
The New York Times reports that Luke Murray, an adivsor to McCarthy, told the Lawfare Podcast last week that the NSA hasn’t used the metadata collection program for more than six months, essentially proving that the program is and was unnecessary to tracking terrorist activity within the United States. The NSA and the Trump White House believe they program will wrap completely by year’s end.
The program, authorized by President George W. Bush as part of the PATRIOT ACT passed in the days following the September 11, 2001 terrorist attacks, “permits the government to collect troves of data from phone companies with a simple court order. No actual warrant required,” according to the Washington Examiner.
Then-NSA analyst Edward Snowden leaked details about the government’s massive metadata collection operation in 2013.
Congress reauthorized the program in 2015 with some subtle changes, but in the last year of the Obama administration, the NSA was revealed to have collected more than 151 million phone records, using 42 secret orders. In the first year of the Trump administration, the Examiner says, use of the progarm exploded, and the government collected around 543 million independent phone records, entirely without warrants.
Although the records don’t reveal much about the content of each conversation, the call “metadata” reveals things like location of the caller and recipient, length of the call, and patterns of behavior — all of which the NSA, at one time, said was necessary to help track and neutralize terrorist cells operating within the United States.
The NSA argued that Fourth Amendment protections against warrantless wiretaps and searches did not apply to non-specific metadata, which (theoretically) yielded patterns rather than instances of specific behavior, and that obtaining a warrant for each individual investigation would be tedious, expensive, and an unnecessary waste of time.
But as recently as 2018, the NSA expressed concerns that bulk metadata collection was difficult to manage and to use effectively. Data storage was unwieldy, requiring huge warehouses full of servers, and the program had not provided much in the way of useful information. As well, there were technical difficulties with the program “that led to collection of records on US persons that it didn’t have authority to collect.”
The program is due to expire in December, with the expiration of the 2015 USA FREEDOM ACT, and Murray told the Lawfare Podcast that he does not believe the adminstration will reauthorize the program.
“[T]he administration actually hasn’t been using it for the past six months because of problems with way in which that information was collected,” Murray told the hosts. “Possibly collecting on US citizens in the way that was transferred from private companies to the administration after they got FISA court approval.”
A spokesperson for Rep. McCarthy did not confirm or deny the administration’s plans, telling the NYT only that Murray “was not speaking on behalf of administration policy or what Congress intends to do on this issue.”
The NSA refused to confirm or deny the reports as well, saying that, rather, they were “carefully evaluating all aspects” of the program and would make a recommendation about it to the White House later in the year. Ultimately, the NSA told the NYT, a decision on whether to continue the program is up to the Trump administration.