Internet Metadata Collection

The Curious Case of the Missing Metadata

By Chris Donesa
Wednesday, February 12, 2014, 12:30 PM

Last week, the Wall Street Journal reported that the National Security Agency is now only collecting "about 20% or less" of U.S. telephony metadata under the Section 215 program now acknowledged by the government. The Washington Post reported a slightly higher figure: from 20% to 30%. If accurate, this startling disclosure should be troubling to all sides of the debate over metadata collection.  Advocates should be concerned that the collection is now so limited as to jeopardize the program’s utility in locating potential terrorist links to the United States, and that the Department of Justice, DNI, and NSA have allowed the state of affairs to decline so perilously.  Critics now have substantial reason to question and even litigate the rationale for continuing the program, and industry should have heightened concern about the potential for expanded compelled collection by the government.

But the immediately baffling question is why the stories' sources---unnamed “people familiar with the NSA program" and "current and former U.S. officials," who presumably have or had significant national security responsibilities---would make such a specific disclosure in the first place.  Even putting the potential for criminal liability aside, the last thing an official should want to do is to advertise the fact that our intelligence capability is now so limited, or to explain exactly where, how, and why the collection is lacking.  (This is almost as bad as, say, telling the press in advance that the government is considering a drone strike against a target and describing that target in detail while still mulling over whether to do it.)

This disclosure does not appear to have been casual or inadvertent---it was made to at least two different reporters who published their stories almost simultaneously along with substantial (if somewhat different) context and detail.  Thus, it was likely made in an effort that didn’t go very well to advance a broader interest such as gaining support for the program.  Instead, the leak has seemingly reinforced how tone deaf the still isolated national security infrastructure is to the shortcomings and ramifications of its awkward messaging.  It’s impossible to know what was in another person’s mind, but on a quick look the potential reasons why someone might leak this don’t even begin to hold up, much less justify the offsetting harm.

The most obvious intended message is something like “the government isn’t Big Brother.  We really don’t even collect data about all that many domestic calls to begin with, so everyone should relax.”  But if calming critics is the goal, the leak fails miserably. Disclosing that the scope is now so narrow fundamentally undermines the justification of collecting “all the dots.”  In the oversimplified realm of the public debate, that becomes an easy and damning talking point to question whether the program even serves its purpose going forward.  The disclosure will also inevitably fuel even more litigation, including questions about whether this fact should have been affirmatively made known to judges and others.

It’s also possible that the leak was intended as a warning that the metadata program is now seriously deficient and will require significant expansion of business record collection to maintain it as a tool against terrorism.  This logic is quite similar to points that were made to justify the FISA Amendments Act and renewal of Section 215 over the life of the program.  But today’s political environment is volatile, highly skeptical of the NSA, and certainly in no mood to entertain the possibility of expanding the program, necessary or not, even under existing legal authority.  Moreover, floating a trial balloon about compelling records production from a much greater universe of providers virtually invites them to begin preparing strategies to counter, increasing the risk of a random and negative outcome imposed by the judiciary.  None of this is in the government’s obvious interest to air in public.

In the end, the apparently clumsy leak only further highlights the real issue at stake---the failure to date to develop and articulate a coherent and clearly stated rationale for continuing the metadata program, particularly in light of its public disclosure and apparently diminished scope.  “People familiar with the NSA program” will be much better served by figuring out if and how they can answer this critical question instead of idly musing about their problems for publication.  Assuming, of course, that the disclosure wasn’t intended to begin laying the foundation to end the program in the first place.

Chris Donesa was Chief Counsel for the House Permanent Select Committee on Intelligence from 2004-2013.