Document Type

Article

Publication Date

2020

Publication Citation

11 Harvard National Security Journal 308 (2020)

Abstract

Edward Snowden’s disclosure of National Security Agency (“NSA”) bulk collection of communications metadata was a highly disturbing shock to the American public. The intelligence community was surprised by the response, as it had largely not anticipated a strong negative public reaction to this surveillance program. Controversy over the bulk metadata collection led to the 2015 passage of the USA FREEDOM Act. The law mandated that the intelligence community would collect the Call Detail Records (“CDR”) from telephone service providers in strictly limited ways, not in bulk, and only under order from the Foreign Intelligence Surveillance Court. The new program initially seemed to be working well, although the fact that from 40 court orders in both 2016 and 2017, the NSA collected hundreds of millions of CDRs created public concern. Then in June 2018 the NSA announced it had purged three years’ worth of CDRs due to “technical irregularities”; later the agency made clear that it would not seek the program’s renewal.

This Article demystifies these situations, analyzing how forty orders might lead to the collection of several million CDRs and providing the first explanation that fits the facts of what might have caused the “technical irregularities” leading to the purge of records. This Article also exposes a rather remarkable lacuna in Congressional oversight: even at the time of the passage of the USA FREEDOM Act a changing terrorist threat environment and changing communications technologies had effectively eliminated value of the CDR collection. We conclude with recommendations on conducting intelligence oversight.

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