By Joshua L. Dratel, Co-Chair of NACDL’s National Security Committee
On Wednesday, September 18, Congress will conduct hearings on whether to reauthorize the broad electronic surveillance program created by section 215 of the PATRIOT Act. The call detail record provision of Section 215 (the CDR program) permits the collection and retention of the telephone call records — the phone numbers, dates, times, duration, and other metadata — for all telephone calls to, from, and within the US. Other provisions of 215 allow for the collection of business records and other “tangible things.” Extended several times since its inception, it is time — for compelling practical, privacy, and political reasons — finally to reject reauthorization for any period, much less permanently as requested by the Trump administration.
I have a unique but direct perspective with respect to 215. Since 2010, I have represented Basaaly Moalin, a Somali-American whose federal criminal prosecution and conviction in San Diego — for sending approximately $15,000 allegedly to al Shabaab in Somalia in 2007–08 — was predicated on section 215 collection and retention. It is the only criminal case in the nearly two decades of the program’s existence in which the government claims section 215 played any role. In Moalin’s case, four years after a 2003 FBI investigation found allegations of a connection to al Shabaab unfounded, his phone number, which had been collected in 2003, was identified in 2007 as being in indirect contact with an al Shabaab operative in Somalia.
Yet that cross-reference, from which the government obtained a Foreign Intelligence Surveillance Act warrant to intercept Moalin ‘s electronic communications for eleven months, was never disclosed to the defense prior to trial. Instead, it was not until five months after the jury’s verdict that the government revealed the use of 215 against Mr. Moalin, and only then in an effort to justify the program in response to Edward Snowden’s June 2013 revelations of 215’s previously unknown scope. In Congressional testimony, FBI Deputy Director Sean Joyce revealed 215’s critical contribution to the Moalin investigation: that Moalin “had indirect contacts with a known terrorist overseas.”
Thus, Moalin himself was not necessarily in contact with an al Shabaab operative. Still, 215 permitted NSA to examine call records within three “hops” of another call — later reduced to two “hops” in the USA Freedom Act. As a result, it is still unknown to us just how attenuated was Moalin’s telephone contact that precipitated the 215 cross-reference.
While the government publicly announced 215’s involvement when it suited its political purposes, none of that had previously been disclosed to Moalin’s defense, ostensibly because it was classified. That lack of notice is but one of the material deficiencies from which 215 has suffered. Since the government’s disclosures, in court the government still denies it had the obligation at any point, even now, to inform Moalin, or even his lawyers who possess security clearance, of its use of 215 in the case. This lack of transparency allows intelligence agencies to sanitize the chain of evidence used in criminal prosecutions, and avoid any examination of the use and legality of pervasive electronic surveillance programs like 215.
That Moalin’s case is the sole investigative product of 215 is the most convincing evidence that as a practical matter, the CDR program is not necessary or even productive for national security purposes. As reported in The New York Times and Wall Street Journal, even the NSA has expressed existential doubts about the program’s efficacy, characterizing it as a “logistical headache,” and discontinued the program for six months in 2018 without any adverse impact on national security.
In addition, with respect not only to 215’s operational efficiency, but also importantly to privacy, the program has never operated within the limits of its statutory mandate. In 2015, the federal Second Circuit Court of Appeals ruled that the NSA had exceeded 215’s statutory boundaries. Congress amended the program later that year, and President Obama also imposed certain limitations. Nevertheless, 215 has continued to encounter intractable compliance problems. The Journal and Times have further reported that since 2015 there have been multiple episodes of considerable overcollection and retention of call records, requiring purging of massive amounts of improperly obtained Americans’ call metadata. Those difficulties, too, underlie the NSA’s reported reluctance to continue a program for which, according to one former intelligence official, “the candle is not worth the flame.” Despite these problems, there have not been any consequences for the NSA or those officials whose operation of the program has transgressed statutory or regulatory restrictions. The NSA retains the power to police itself, at our individual and collective peril.
The privacy considerations generated by the continued bulk collection of Americans’ call records and the lack of transparency in what the government considers “tangible things” also has political implications. The 215 database contains a voluminous but precise profile of every American’s social, religious, and political network. As the database collects that very revealing metadata and other records, the prospects for abuse accumulate inexorably as well. Can anyone residing at any point along the political, social, or religious spectrum be comfortable with the government collecting, retaining for extended periods, and having ready access to, that information? 215 is also irreconcilable with the Supreme Court’s recent jurisprudence, manifested most recently in its decision in Carpenter applying Fourth Amendment rights to historical cell site location information, that recognizes that individuals retain privacy interests in their digital devices and the information they contain and create, even when that information is stored by a third party, such as a phone or internet provider.
Moalin’s case, whether on its merits, or as the exception that proves the rule, demonstrates that 215 does not serve the interests of national security. 215’s inefficiencies and repeated compliance lapses also make it unwieldy to understand and operate even for those who administer the program. Instead of a useful element of national security, 215 represents a wholesale intrusion into the privacy of every American that does not simply end at the point of collection, but persists for the years during which the government retains the records, and can search them without any meaningful monitoring or accountability.
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