Electronic surveillance

The NSA and the USA Freedom Act

What are the lessons here? The obvious one is probably that Murphy’s Law remains in force. And that law is particularly powerful as applied to large, complex systems. Sometimes, these systems generate mistakes that threaten privacy. Sometimes they generate mistakes that threaten security. The more complex the system—legally or technologically—the more likely that it will yield errors of both types.

The USA Freedom Act created a more complex legal system requiring a more complex technological system governing collection of telephony metadata. This system failed. The failure has been discovered and apparently remediated. But I am left wondering whether another error could arise, whether the system is too complex to be sustainable, and therefore whether the juice is worth the squeeze, particularly after Carpenter. We should know the answer to that question soon: under Section 705 of the USA Freedom Act, the CDR process is scheduled to sunset, unless renewed, at the end of 2019, and it will be very interesting to see whether the executive branch even seeks renewal.