When the agency announced last year that it was deleting all call records it had grabbed since the 2015 reauthorization – tens of millions of them – Paul and Wyden almost leapt out their chairs.
Here was what was supposed to be a scaled-back program and yet it had somehow gathered more data. And the NSA was being public about it. Given the spy agency's long history of creating secret interpretations of the law – interpretations that rarely, if ever, survive proper legal scrutiny – it was more than likely that the NSA was trying out another novel legal interpretation.
The senators sent a letter demanding to know more, acutely aware that they had just 16 months to find out what was going on before Section 215 was up for reauthorization.
Sixteen months is not very long in Congressional terms. Wyden in particular had battled for over a year with the NSA over Section 702: a fight that led to a number of ludicrous situations where the security services found reason after reason to avoid providing answers to reasonable questions.
In the meantime, the Privacy and Civil Liberties Oversight Board (PCLOB) was recreated, albeit with greatly reduced powers. After it issued a series of highly critical reports on the NSA spying programs following their exposure by Edward Snowden, the NSA and FBI saw to it that the PCLOB has its legs cut out from under it. Congress took away its independence and its money until it became a shell with a single board member unable to do any actual work.
Then came the wild card that is President Trump. Trump was persuaded to recreate the PCLOB and thanks to his natural distrust of anything the establishment says, it is unlikely that the NSA can rely on the White House to back its spying programs.
In fact, both Trump's self-absorption and his willingness to not just break the rules but completely ignore them, means he is extremely suspicious of surveillance programs, and has repeatedly attacked them on Twitter.
All of which leads us to now: nine months out from this year's Section 215 reauthorization deadline, and with the NSA and FBI uncertain whether they can command sufficient support to retain their existing programs.
From a purely strategic perspective therefore, the fact that the vast and expansive Section 215 program has become almost entirely associated with telephone metadata thanks to Edward Snowden and its own public announcements, could be an advantage.
If the NSA offers to give up its phone metadata collection voluntarily, it opens up several opportunities for the agency. For one, it doesn't have to explain what its secret legal interpretations of the law are and so can continue to use them. Second, it can repeat the same feat as in 2015 – give Congress the illusion of bringing the security services to heel. And third, it can continue to do exactly what it was doing while looking to everyone else that it has scaled back.
Here's one thing we are sure of: the NSA has already figured out how to get all the information that was gathered through the metadata part of Section 215. It will be through a different law under a different secret legal interpretation.
We don't know what that is yet, but in a few years, thanks to people like Senator Wyden, we will likely find out. And then before it can be shut down for good, the NSA will shift the goal posts again.
In short, the "news" this week that the NSA stopped its metadata collection six to eight months ago, and may be willing to let it drop, is just the first part in a complex chess game that will play from now until December, when the Section 215 renewal comes to a head.
Is the NSA ending its spying program? No. Not even close. ®
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