NSA can still collect your phone records through legal loopholes

Analysis: "Backup" laws exist in forms of executive orders that can keep the program alive.

NSA has moved systems overseas before to circumvent US law. (Image: file photo via CNET/CBS Interactive)

The NSA's bulk phone records collection program may be alive and well -- just not in the place you think it is.

On Friday, the program that ensnared millions of Americans' phone records was shut down, months after the passing of the Freedom Act, which was brought out to counter a wide (and criticized) interpretation of the Patriot Act by the Obama administration. After two years of back and forth in Congress after Edward Snowden leaked thousands of documents to journalists, the Freedom Act nixed just one of the many programs disclosed by the whistleblower.

James Clapper, director of national intelligence, said Friday that the government was now "prohibited from collecting telephone metadata records in bulk under Section 215, including of both US and non-US persons."

The program, known as the Section 215 program after its namesake place in the law books, allowed the NSA to see metadata of almost every phone call made in the US, including caller and recipient, the time and date, and duration -- but not the contents.

Verizon and AT&T were both forced to hand over their records to the authorities on a rolling basis.

But not everyone is heralding the closure of the program as a wide success. Some -- more on the skeptical side -- believe the government wants to keep it alive under a different legal authority.

Why? Because the NSA has done it before.

Earlier this month, The New York Times posted a startling revelation that a similar defunct program -- this time to collect web and email metadata -- was restarted by effectively moving the program overseas.

Under a Freedom of Information request, the newspaper found that the program could be shut down because "other authorities can satisfy certain foreign intelligence requirements."

The news wasn't all that surprising given that a year earlier, we published at sister-site CBS News new academic research that showed legal loopholes could allow the government to "bypass Fourth Amendment protections to conduct massive domestic surveillance on US citizens" by collecting the data from overseas.

That authority is given under a little-known presidential directive, known as Executive Order 12333, which other NSA whistleblowers have said is a "blank check" for the intelligence community.

William Binney, a former National Security Agency official turned whistleblower, told me earlier this year that the executive order is a "direct threat to Americans' privacy."

Even the NSA says it uses the order for the majority of its authority, whereas Section 215 only produces a "small percentage of the overall data that's collected," according to former government official Richard Clarke.


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How the administration's Executive Order 12333 works remains a secret, but privacy and civil liberty groups have said it permits, among other things, spying "on anyone within the United States."

Marcy Wheeler, a national security blogger, led the skepticism following Clapper's announcement.

She said, on her blog Emptywheel, that "just a tiny corner of the phone dragnet will shut down," adding that the government is "probably" not collecting phone records under the now defunct Section 215 authority, but existing provisions in the law allow for records to be collected from overseas under Executive Order 12333.

"They're still collecting your phone records in bulk, not to mention collecting a great deal of your Internet records in bulk as well," she said.

Under the presidential order, some of the worst of the government's surveillance continues on. And because it's under the sole direction of the executive branch, there's no oversight by Congress or the judiciary. At least under the Patriot Act, there was some judicial oversight -- even if it was in absolute secret by a set of judges referred to as a "kangaroo court" by one former NSA analyst.

It's entirely possible that by nixing the Patriot Act, the NSA has pushed its phone records and wider metadata collection under the full control of a directive that makes it even tougher to stop in the future.

A call to the Office of the Director of National Intelligence was not returned Monday.