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 12:50 PM EDT, Tue July 29, 2014
LZ Granderson says the cyber-standing ovation given to Robyn Lawley, an Australian plus-size model who posted unretouched photos, shows how crazy Americans' notions of beauty have become
updated 7:56 AM EDT, Mon July 28, 2014
A crisis like the Gaza conflict or the surge of immigrants can be an opportunity for a lame duck president, writes Julian Zelizer
updated 2:22 PM EDT, Sat July 26, 2014
Carol Costello says the league's light punishment sent the message that it didn't consider domestic violence a serious offense
updated 8:51 AM EDT, Mon July 28, 2014
Danny Cevallos says saggy pants aren't the kind of fashion statement protected by the First Amendment.
updated 2:52 PM EDT, Mon July 28, 2014
Margaret Hoover says some GOP legislators support a state's right to allow same-sex marriage and the right of churches, synagogues and mosques not to perform the sacrament
updated 2:31 PM EDT, Mon July 28, 2014
Megan McCracken and Jennifer Moreno say it's unacceptable for states to experiment with new execution procedures without full disclosure
updated 2:50 PM EDT, Mon July 28, 2014
Priya Satia says today's drones for bombardment and surveillance have their roots in the deadly history of Western aerial control of the Middle East that began in World War One
updated 12:35 PM EDT, Mon July 28, 2014
Jeff Yang says it's great to see the comics make an effort at diversifying the halls of justice
updated 11:55 AM EDT, Sat July 26, 2014
Rick Francona says the reported artillery firing from Russian territory is a sign Vladimir Putin has escalated the Ukraine battle
updated 2:22 PM EDT, Sun July 27, 2014
Paul Callan says the fact that appeals delay the death penalty doesn't make it an unconstitutional punishment, as one judge ruled
updated 6:25 PM EDT, Thu July 24, 2014
Pilot Robert Mark says it's been tough for the airline industry after the plane crashes in Ukraine and Taiwan.
updated 11:10 AM EDT, Fri July 25, 2014
Jennifer DeVoe laments efforts to end subsidies that allow working Americans to finally afford health insurance.
updated 11:33 AM EDT, Sat July 26, 2014
Ruti Teitel says assigning a costly and humiliating "collective guilt" to Germany after WWI would end up teaching the global community hard lessons about who to blame for war crimes
updated 8:45 AM EDT, Fri July 25, 2014
John Sutter responds to criticism of his column on the ethics of eating dog.
updated 9:02 AM EDT, Fri July 25, 2014
Frida Ghitis says it's tempting to ignore North Korea's antics as bluster but the cruel regime is dangerous.
updated 2:50 PM EDT, Fri July 25, 2014
To the question "Is Putin evil?" Alexander Motyl says he is evil enough for condemnation by people of good will.
updated 2:03 PM EDT, Thu July 24, 2014
Laurie Garrett: Poor governance, ignorance, hysteria worsen the Ebola epidemic in Sierra Leone, Guinea, Liberia.
updated 9:49 AM EDT, Thu July 24, 2014
Patrick Cronin and Kelley Sayler say the world is seeing nonstate groups such as Ukraine's rebels wielding more power to do harm than ever before
updated 6:05 PM EDT, Wed July 23, 2014
Ukraine ambassador Olexander Motsyk places blame for the MH17 tragedy squarely at the door of Russia
updated 7:42 AM EDT, Thu July 24, 2014
Mark Kramer says Russia and its proxies have a history of shooting down civilian aircraft, often with few repercussions
updated 2:53 PM EDT, Thu July 24, 2014
Les Abend says, with rockets flying over Tel Aviv and missiles shooting down MH17 over Ukraine, a commercial pilot's pre-flight checklist just got much more complicated
updated 9:17 AM EDT, Thu July 24, 2014
Mark Kramer says Russia and its proxies have a history of shooting down civilian aircraft, often with few repercussions
updated 12:37 PM EDT, Thu July 24, 2014
Gerard Jacobs says grieving families and nations need the comfort of traditional rituals to honor the remains of loved ones, particularly in a mass disaster
updated 10:13 AM EDT, Thu July 24, 2014
The idea is difficult to stomach, but John Sutter writes that eating dog is morally equivalent to eating pig, another intelligent animal. If Americans oppose it, they should question their own eating habits as well.
updated 12:30 PM EDT, Wed July 23, 2014
Bill van Esveld says under the laws of war, civilians who do not join in the fight are always to be protected. An International Criminal Court could rule on whether Israeli airstrikes and Hamas rocketing are war crimes.
updated 10:08 AM EDT, Wed July 23, 2014
Gordon Brown says the kidnapped Nigerian girls have been in captivity for 100 days, but the world has not forgotten them.
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT