Skip to main content
Part of complete coverage from

NSA and your phone records: What should Obama do?

By Peter Bergen
updated 8:32 AM EST, Wed January 15, 2014
STORY HIGHLIGHTS
  • Bergen: New America Foundation finds little value to mass surveillance program
  • He says hardly any terrorism cases were found out or wrapped up as result of phone metadata
  • President Obama is giving a speech about NSA surveillance Friday
  • Bergen: Ending the mass collection of phone data is a good solution

Editor's note: Peter Bergen is CNN's national security analyst, a director at the New America Foundation and the author of "Manhunt: The Ten-Year Search for bin Laden -- From 9/11 to Abbottabad." This story is adapted from a New America Foundation policy paper.

(CNN) -- On Friday President Obama will address the nation about the NSA's controversial surveillance programs. He is expected to announce some substantive changes to those programs which collect data about the phone calls of every American.

After the first leaks by former NSA contractor Edward Snowden were published in June, Obama defended the NSA's surveillance programs during a visit to Berlin, saying: "We know of at least 50 threats that have been averted because of this information not just in the United States, but, in some cases, threats here in Germany. So lives have been saved."

Similarly, Gen. Keith Alexander, the director of the NSA, testified before Congress that "the information gathered from these programs provided the U.S. government with critical leads to help prevent over 50 potential terrorist events in more than 20 countries around the world."

Peter Bergen
Peter Bergen

Rep. Mike Rogers, R-Michigan, chairman of the House Permanent Select Committee on Intelligence, said on the House floor in July that 54 times the NSA programs "stopped and thwarted terrorist attacks both here and in Europe -- saving real lives."

However, a New America Foundation review of the government's claims about the role that NSA "bulk" surveillance of phone and e-mail communications records has had in keeping the United States safe from terrorism found that these claims are overblown and even misleading.

An in-depth analysis of 225 individuals recruited by al Qaeda or a like-minded group, or inspired by al Qaeda ideology, and charged in the United States with an act of terrorism since 9/11, demonstrated that traditional investigative methods, such as the use of informants, tips from local communities, and targeted intelligence operations, provided the initial impetus for investigations in the majority of cases, while the contribution of NSA's bulk surveillance programs to these cases was minimal.

(Click on the link to go to a database of all these 225 individuals and additional details about them and the government's investigations of these cases. )

What's the impact of NSA data collection?

The controversial bulk collection of American telephone metadata, which includes the telephone numbers that originate and receive calls, as well as the time of those calls but not their content, under Section 215 of the PATRIOT Act, appears to have played an identifiable role in, at most, 1.8% of these cases.

This finding corrobrated that of the Obama-appointed White House review group who had access to classified materials that concluded in December that "section 215 telephony meta-data was not essential to preventing attacks."

Our study also found that NSA programs involving the surveillance of non-U.S. persons outside of the United States under Section 702 of the FISA Amendments Act played a role in 4.4 percent of the terrorism cases we examined, and NSA surveillance under an unidentified authority played a role in 1.3 percent of cases we examined.

In 27 percent of the cases we reviewed, court records and public reporting do not identify which specific methods initiated the investigation. These cases, involving 62 individuals, may have been initiated by an undercover informant, an undercover officer, a family member tip, other traditional law enforcement methods, CIA- or FBI-generated intelligence, NSA surveillance of some kind, or any number of other methods.

Furthermore, our examination of the role of the database of U.S. citizens' telephone metadata in the single plot the government uses to justify the importance of the program -- that of Basaaly Moalin, a San Diego cabdriver who in 2007 and 2008 provided $8,500 to Al-Shabaab, al Qaeda's affiliate in Somalia -- calls into question the necessity of the Section 215 bulk collection program.

According to the government, the database of American phone metadata allows intelligence authorities to quickly circumvent the traditional burden of proof associated with criminal warrants, thus allowing them to "connect the dots" faster and prevent future 9/11-scale attacks. Yet in the Moalin case, after using the NSA's phone database to link a number in Somalia to Moalin, the FBI waited two months to begin an investigation and wiretap his phone.

This undercuts the government's theory that the database of Americans' telephone metadata is necessary to expedite the investigative process, since it clearly didn't expedite the process in the single case the government uses to extol its virtues.

In sum, the surveillance of American phone metadata has had no discernible impact on preventing acts of terrorism and only the most marginal of impacts on preventing terrorist-related activity, such as fundraising for a terrorist group.

Given that, what should the Obama administration do about the NSA's phone data collection program, which keeps the phone data of all Americans for five years?

President Obama has a number of potential choices. The first is to continue the program as is. Another is to give the phone collection program to some kind of private third party entity, and another is to mandate that the phone companies keep the data.

There are problems with all these approaches.

The status quo is open to legal challenges. Judge Richard J. Leon of the District of Columbia ruled in December that the program likely violates the Constitution. Another federal judge, in New York, ruled in favor of the program a week later, so its legal fate might have to be determined by higher courts.

Giving the data collection program to some kind of government-nominated private third party will likely be seen as just another way for the government to store the data. And the phone companies don't want the costs and headaches of storing five years of data.

There is another approach that should be considered, which is to abandon the bulk phone data collection program entirely and go back to the tried and true approach of having the government get a court order to look at a suspect's phone records, rather than leaving that decision to the discretion of a group of anonymous officials at NSA, as is now the case.

This hardly seems onerous. After all, since 1979 judges have only turned down 0.3% of the requests they have received for warrants involving cases of suspected espionage or terrorism. But such a move would assure Americans that there was some sort of due process going on whenever their phone records are examined by the government. And this seems closer to the spirit of the Fourth Amendment, which guards against "unreasonable searches," than does the present system.

Thanks to David Sterman and Emily Schneider for their research help.

Follow us on Twitter @CNNOpinion.

Join us on Facebook/CNNOpinion.

ADVERTISEMENT
Part of complete coverage on
updated 12:53 PM EDT, Tue September 30, 2014
Jeff Yang calls Ello a wakeup call to Facebook and Twitter, and a sign of hope for fast-rising upstarts Pinterest and Snapchat.
updated 10:23 AM EDT, Wed October 1, 2014
Paul Waldman says the Secret Service should examine its procedures to make sure there are no threats to the White House--but without losing the openness so valuable to democracy
updated 10:55 AM EDT, Wed October 1, 2014
Jesse Williams says the videotape and 911 call that resulted in police gunning down John Crawford at a Walmart reveals the fatal injustice of racial assumptions
updated 7:03 PM EDT, Tue September 30, 2014
Mel Robbins says officials should drop the P.C. pose: The beheading in Oklahoma was not workplace violence. Plenty of evidence shows Alton Nolen was an admirer of ISIS.
updated 3:11 PM EDT, Tue September 30, 2014
The Occupy Central movement has already achieved much by bringing greater attention to Hong Kong's struggle for democracy, William Piekos says..
updated 3:11 PM EDT, Tue September 30, 2014
The Occupy Central movement has already achieved much by bringing greater attention to Hong Kong's struggle for democracy, writes William Piekos.
updated 10:13 AM EDT, Tue September 30, 2014
As Prime Minister Narendra Modi visits America, Madeleine Albright says a world roiled by conflict needs these two great democracies to commit to moving their partnership forward
updated 10:04 AM EDT, Tue September 30, 2014
John Sutter: Lake Providence, Louisiana, is the parish seat of the "most unequal place in America." And until somewhat recently, the poor side of town was invisible on Google Street View.
updated 9:11 AM EDT, Mon September 29, 2014
Julian Zelizer says in the run up to the 2016 election the party faces divisions on its approach to the U.S.'s place in the world
updated 10:19 AM EDT, Mon September 29, 2014
Ruben Navarrette says Common Core supporters can't devise a new set of standards and then fail to effectively sell it.
updated 9:29 AM EDT, Tue September 30, 2014
Earlier this month, Kenyans commemorated the heinous attack on the Westgate Mall in Nairobi.
updated 2:59 PM EDT, Tue September 30, 2014
David Wheeler says Colorado students are right to protest curriculum changes that downplays civil disobedience.
updated 9:58 PM EDT, Fri September 26, 2014
Sally Kohn says when people click on hacked celebrity photos or ISIS videos, they are encouraging the bad guys.
updated 7:55 AM EDT, Fri September 26, 2014
Loren Bunche says she walked by a homeless man every day and felt bad about it -- until one day she paused to get to know him
updated 9:32 AM EDT, Tue September 30, 2014
ISIS grabs headlines on social media, but hateful speech is no match for moderate voices, says Nadia Oweidat.
updated 8:33 AM EDT, Mon September 29, 2014
A new report counts jihadists fighting globally. The verdict? The threat isn't that big, says Peter Bergen.
updated 5:37 PM EDT, Tue September 23, 2014
Ebola could become the biggest humanitarian disaster in a generation, writes former British Prime Minister Tony Blair
updated 12:58 PM EDT, Fri September 26, 2014
ISIS has shocked the world. But will releasing videos of executions backfire? Four experts give their take.
updated 10:39 AM EDT, Fri September 26, 2014
Eric Holder kicked off his stormy tenure as attorney general with a challenge to the public that set tone for six turbulent years as top law-enforcement officer.
updated 9:09 AM EDT, Fri September 26, 2014
LZ Granderson says Obama was elected as a war-ending change agent, not a leader who would leave behind for his successor new engagement in Iraq and Syria. Is he as disappointed as the rest of us?
updated 5:10 AM EDT, Wed September 24, 2014
Gayle Lemmon says the question now is how to translate all the high-profile feminizing into real gains for women
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT