Concerns over civil liberties have been reignited after the Trump administration applied to reauthorize a National Security Agency (NSA) spying program that had gathered millions of U.S. citizens’ call records.
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Director of national intelligence Dan Coats said in a letter to the heads of two key senate committees that all provisions of the USA Freedom Act should be permanently reauthorized including the program that collected and analysed Americans’ calls and texts.
“As technology changes, our adversaries’ tradecraft and communications habits will continue to evolve and adapt,” Coats’ letter said. “In light of this dynamic environment, the Administration supports reauthorization of this provision as well.”
The letter, first seen by the New York Times, was sent on August 15 – also Coats’ last day in office.
Coats acknowledges in his letter that there is a lot wrong with the current program, but says the agency needs the powers in case they are useful in the future.
In 2015, following the 2013 Edward Snowden revelations that outlined the NSA’s mass data collection practices, Congress put in place measures to curtail the government’s surveillance powers under the USA Freedom Act. This required federal agencies to seek court orders on a case-by-case basis if they needed to obtain data from telecoms firms.
Prior to that, the 2001 Patriot Act put in place after the 9/11 terror attacks had allowed the NSA to collect large amounts of call metadata.
How 9/11 laid the groundwork for the NSA’s spying program
Following the failure to detect the 9/11 attacks, Vice President Dick Cheney asked the intelligence agencies what more could be done and promised the necessary legal framework, says Philip Ingram, MBE, a former colonel in British military intelligence.
“It is this legal framework that has never really been put on a permanent footing and was part of what was known as ‘the President’s Surveillance Program’ when these agencies were tasked to look at threats at home.”
This required bulk collection of data, including phone call and increasingly, internet data–which was analysed through the Meta Data Analysis Center.
However, many of the U.S. telecoms providers were nervous about allowing state access to their customers personal data without a legal footing, says Ingram. “This is where the current push comes from: Different administrations had contrasting priorities and abilities to get the legislation passed.”
The NSA’s spying program and civil liberties
Of course, the move will raise concerns about civil liberties. However, according to Ingram, the impact isn’t as bad as people think. “The data collected and analysed is metadata rather than message content data.”
He says this is something that civil liberty campaigners often forget. “They suggest the state is listening into everyone’s phone calls and reading everyone’s emails: This physically is not possible. The original legislation and program was rushed in as the U.S. thought further attacks after 9/11 were very likely to occur.”
There is of course a political angle to this move as the 2020 presidential election approaches. Ian Thornton-Trump, security head at AMTrust Europe points out that the Patriot Act and the intelligence programs it has spawned “have always been highly controversial” from a U.S. constitutional perspective.
However, Thornton-Trump points out: “The problem with opposing a counter-terrorism program is political rivals on both sides will characterise a civil liberties position as pro-attacks on the homeland and being weak on national security.”
He adds: “Intelligence agencies are not dumb–they know this is the perfect time to push for an expansion to their programs in what may prove to be the most divisive moment in American politics: That divisive moment being the 2020 presidential campaign.”
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