The Basis for the NSA's Call-Tracking Program Has Disappeared, If It Ever Existed
This piece was originally published on on November 7, 2013.
There's a significant discrepancy, one that deserves more attention, between what the NSA told the Foreign Intelligence Surveillance Court five years ago about the call-tracking program and what the agency is telling ordinary federal courts about the program now. It told the FISC five years ago that the program was indispensable, but it's saying something quite different today.
From recently released documents, we know that in 2008 the NSA asked the FISC to reauthorize the call-tracking program, a program the FISC had first authorized two years earlier. The FISC obliged, issuing an order that permitted the NSA to continue collecting information about essentially all telephone calls made or received on U.S. telephone networks, subject to "minimization requirements" restricting the government's access to information collected under the program. In reauthorizing the program, the FISC relied on representations from the government about the program's importance and the feasibility of tracking suspected terrorists' associations through other, less intrusive means. We know about these representations because in his March 2009 opinion describing the NSA's "frequent[] and systemic[]" violation of the minimization requirements, Judge Reggie Walton had this to say:
On December 12, 2008, the [FISC] re-authorized the government to acquire the tangible things sought by the government in its application in the above-captioned docket ("BR 08-13″). . . . The Court found reasonable grounds to believe that the tangible things sought are relevant to authorized investigations being conducted by the [FBI] to protect against international terrorism. . . . In making this finding, the Court relied on the assertion of the [NSA] that having access to the call detail records "is vital to NSA's counterterrorism intelligence mission" because "[t]he only effective means by which NSA analysts are able continuously to keep track of all affiliates of one of the aforementioned entities [who are taking steps to disguise and obscure their communications and identities], is to obtain and maintain an archive of metadata that will permit these tactics to be uncovered."
A few things about this passage are worth noting. First, it makes clear that the government represented to the FISC not simply that the call-tracking program was useful but that it was crucial—"vital"—to the NSA's mission. Second, it makes clear that the government represented that there were no less-intrusive means of achieving its objectives. The call-tracking program, the NSA told the FISC, was "the only effective means" of "keep[ing] track" of suspected terrorists' associations. Third, the passage makes clear that the FISC relied on the government's representations. In other words, the FISC reauthorized the program because the government said that the program was indispensable.
It seems significant, then, even remarkable, that the government has not made similar representations in the Southern District of New York, where the ACLU's challenge to the call-records program is pending before Judge William Pauley. In the declarations in which one might expect to find the phrases "only effective means" and "vital to the NSA's counterterrorism mission," here is the language one finds instead (with my italics):
- The call-tracking program is "one method that the NSA has developed to accomplish the objective" of "[d]etecting threats by exploiting terrorist communications." Declaration of FBI Acting Assistant Director Robert J. Holley at ¶5.
- "[E]xperience has shown that NSA metadata analysis, in complement with other FBI investigatory and analytical capabilities, produces information pertinent to FBI counter-terrorism investigations, and can contribute to the prevention of terrorist attacks." Declaration of FBI Acting Assistant Director Robert J. Holley at ¶9.
- The call-tracking program is "[o]ne method that the NSA has developed" to "detect any terrorist threat inside the U.S." Declaration of NSA Signals Intelligence Director Teresa H. Shea, National Security Agency at ¶7.
- The call-tracking program is "[o]ne method that the NSA has developed" to "detect any terrorist threat inside the U.S." Declaration of NSA Signals Intelligence Director Teresa H. Shea, National Security Agency at ¶7.
- "Without the ability to obtain and analyze bulk metadata, the NSA would lose a tool for detecting communications chains that link to identifiers associated known and suspected terrorist operatives." Declaration of NSA Signals Intelligence Director Teresa H. Shea, National Security Agency at ¶58.
The government's response to the petition filed by the Electronic Privacy Information Center uses similarly weak language: Without the call-tracking program, , "it may not be feasible for the NSA to identify chains of communications that cross different telecommunications networks."
It seems to me that there's a lot of distance between the representations the government was willing to make to the FISC in 2008 and the representations it's willing to make now. There's a lot of distance, that is, between "the only effective means," on the one hand, and "one method that the NSA has developed," on the other. We could speculate about the reasons for the shift in the NSA's language. Perhaps the government's assessment of the program's importance has changed since 2008. Perhaps the government was willing to say things in an ex parte proceeding that it's not willing to say in an adversarial one. Or perhaps to DNI James Clapper's "least untruthful statement" has led intelligence officials to take more care in making factual claims about the NSA's surveillance activities.
Whatever the reason for the government's shift, though, it's a shift that utterly undermines the representations the government made to the FISC in 2008—representations that the FISC itself said it relied on in determining that the program should be reauthorized. If the government's "only effective means" representation was crucial to the FISC's reauthorization of the program in 2008, as Judge Walton's opinion suggests it was, shouldn't the government's quiet retreat from that representation lead the FISC to withdraw its authorization for the program?
And if the government is no longer willing to say in court what it said in 2008, isn't it fair to say that the government is asking Judge Pauley to hold something that the FISC has never held—namely, that the call-tracking program is lawful and reasonable under the First and Fourth Amendments even if it's not "vital" to the NSA's counterterrorism efforts, and even if there are less intrusive means that the NSA could employ to achieve the same ends?
And if the government is no longer willing to say to federal judges that the program is crucial and the least-intrusive means of accomplishing its counterterrorism objectives, isn't it reasonable for us to ask why intelligence officials are still to the public?
ADDENDUM: As Marty Lederman observed in these , although in its White Paper and its opening brief in ACLU v. Clapper the government embraced Judge Eagan's argument that the collection satisfied section 215 because it is "necessary" for FBI counterterrorism investigations, the Solicitor General's Office abandoned that argument in its Supreme Court filing in EPIC, perhaps because it realized that it would be very difficult to satisfy such a threshold (or because it was unable to find declarants who would attest to such a strong claim). The government is now arguing instead that the statute doesn't require it to show that the call-tracking program is necessary or indispensable or "the only effective means"—only that the program "facilitate[s] the government's use of investigative tools." As Marty explains in the second of the two posts, and as we at the ACLU explain at pages 11-12 of this brief, this new theory of the statute—apparently not the theory adopted by the FISA Court—proves far too much, because adopting it would allow the government to collect virtually any system of records. After all, access to virtually any such system would facilitate investigations.
Learn more about the NSA and other civil liberty issues: Sign up for breaking news alerts,, and .
Learn More About the Issues on This Page
-
Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.