Congress should defy Dan Coats’ last request on phone surveillance

On his way out the door as director of national intelligence, Dan Coats asked Congress to permanently extend legal authority for a National Security Agency (NSA) program that allows the government to see who we call and text.

How much does such “metadata” on calling records say about us?

More than you might think. A Stanford University study, presented in 2016, collected metadata — such as the numbers we call or text, how long we are on the phone — from the smartphones of 823 volunteers. From their 250,000 calls and 1.2 million texts, researchers gained insights about individuals’ religious beliefs, heart and neurological conditions, gun purchases and, in one case, a decision to schedule an abortion.

“Metadata absolutely tells you everything about somebody’s life,” Stewart Baker, NSA’s former general counsel, has said. “If you have enough metadata, you don’t really need content. … [It’s] embarrassing how predictable we are as human beings.”

This program, known as Section 215 of the Patriot Act, also permits the NSA to access records of not just a target — call him “Bob” — and his calls to “Alice,” but also Alice’s calls and the calls those people make. That is why, in a letter to the leaders of the House Judiciary Committee, a coalition of 40 civil liberties groups correctly noted that “the majority of individuals surveilled under the program are neither suspected of any wrongdoing, nor in contact with anyone who is.” In 2018, for example, the government collected 434 million records related to 19 million phone identifiers — despite listing just 11 targets.

Under Section 215, phone companies hold records of our calls, allowing these metadata to be queried by the government on a mere showing that they will be used “for an investigation” related to foreign intelligence or international terrorism — a standard far lower than the usual standard for obtaining a warrant, which requires “probable cause” to believe a crime has been or is about to be committed. A government agency could combine call detail records with our smartphone’s geolocation feature, literally drawing a map of where we’ve been. Add the connections we make on dating apps, the social networks we build on Twitter or Instagram, the political material we repost on Facebook, and a wealth of other personal details will be mappable.

Just as our private lives are vulnerable to analysis of what intelligence professionals call “contact chaining,” so too are political organizations, campaigns and parties. It is likely the Chinese government already is using artificial intelligence to create a matrix of social media connections of Hong Kong protestors that reveals which activists act as opinion leaders and which are frequent nodes for generating collective action. Despite the diffuse nature of these pro-democracy protests, knowing the pressure points of this network may enable China to collapse it. 

Could something similar happen here?

An example of possible partisan overreach can be drawn from another government program, NSA’s foreign surveillance. Some privacy advocates on the political right are concerned about how freely the Obama administration might have allowed officials to unmask the identities of Americans caught up in foreign surveillance calls. For example, former U.N. Ambassador Samantha Power or someone acting in her name requested unmaskings of Americans more than 260 times. Many of these requests reportedly came during a public rift between the outgoing Obama administration and the incoming Trump administration on Israeli settlements. 

Was Power using surveillance to influence foreign policy?

Democrats also have reason for concern. Under President Trump, the growth of large-scale unmasking continues apace, with 16,721 unmaskings in 2018, an increase of 7,000 from the year before. Is it hard to imagine a Democratic presidential nominee could be surveilled for “national security reasons” because he or she is harshly critical of, say, the policies of the Trump administration regarding Iran, Syria or North Korea?

Unmasking is a different surveillance issue, but it highlights the potential for abuse under Section 215. The current law that the administration seeks to make permanent is a reformed version of a program once used for illegal, bulk collection of billions of call records — a clear violation of the Fourth Amendment’s prohibition of unreasonable searches and seizures.

Even under the current, reformed program, the NSA acknowledges that technical limitations forced the deletion of millions of records collected without legal authority from phone service providers. Such technical snafus forced the NSA, for now, to officially suspend this program.

This program may be a technical and legal mess, but that did not prevent Coats from asking Congress to make it permanent. “As technology changes,” he wrote, “our adversaries’ tradecraft and communications habits will continue to evolve and adapt.” No doubt, we need ways to counter the evolving, multiple threats to our security. But something is off when a departing, high-ranking official of the Trump administration asks Congress to make permanent a program that has malfunctioned, violated the law and, by all accounts, failed to produce much useful intelligence. 

Congress should decline the request, while giving the administration room to come back with a more focused policy that protects civil liberty.

Mark W. Davis, former White House speechwriter to President George H.W. Bush, is director of policy for the Washington-based Project for Privacy and Surveillance Accountability. Follow on Twitter @savingprivacy.