Ted Cruz Is Right: NSA Reform Bill Allows More Spying

With terrorism fears running high, Cruz and Rubio traded shots over government surveillance.

Ted Cruz makes a point during the CNN Republican presidential debate on Tuesday in Las Vegas.
AP Photo/John Locher
Brendan Sasso
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Brendan Sasso
Dec. 15, 2015, 10:43 p.m.

Sens. Marco Ru­bio and Ted Cruz clashed over their op­pos­ing votes on a key sur­veil­lance bill dur­ing Tues­day night’s GOP de­bate, with each sen­at­or try­ing to es­tab­lish him­self as the strongest on na­tion­al se­cur­ity.

Ru­bio ac­cused Cruz of ham­per­ing in­tel­li­gence agen­cies by sup­port­ing the USA Free­dom Act, which ended the Na­tion­al Se­cur­ity Agency’s vast col­lec­tion of mil­lions of U.S. phone re­cords. That in­form­a­tion could have been crit­ic­al in in­vest­ig­at­ing the shoot­ing in San Bern­ardino, Cali­for­nia, Ru­bio ar­gued. “We are now at a time where we need more tools, not less tools,” the Flor­ida Re­pub­lic­an said. “And that tool we lost, the metadata pro­gram, was a valu­able tool that we no longer have at our dis­pos­al.”

Cruz shot back that Ru­bio “knows what he’s say­ing isn’t true.” The old NSA drag­net, Cruz ar­gued, covered only 20-30 per­cent of call re­cords, where­as the Free­dom Act will ac­tu­ally al­low the agency to col­lect “nearly 100 per­cent” of re­cords. Ru­bio stayed firm, claim­ing that “there is noth­ing that we are al­lowed to do un­der this bill that we could not do be­fore.”

So who is right? Did the Free­dom Act ac­tu­ally give the NSA ac­cess to more re­cords, as Cruz is claim­ing?

Yes, ac­cord­ing to top in­tel­li­gence of­fi­cials. “The over­all volume of call de­tail re­cords sub­ject to query pur­su­ant to court or­der is great­er un­der USA FREE­DOM Act,” the Of­fice of the Dir­ect­or of Na­tion­al In­tel­li­gence wrote in a fact sheet on its im­ple­ment­a­tion of the law last month.

Un­der the old law, the Pat­ri­ot Act, the NSA claimed it had the right to col­lect re­cords on every U.S. phone call. But due to tech­nic­al obstacles, the agency re­portedly struggled to in­teg­rate cell-phone re­cords in­to its data­base. With people in­creas­ingly re­ly­ing on cell phones in­stead of land­lines, the tech­nic­al prob­lems had caused a ma­jor gap in the NSA’s data­base.

Un­der the Free­dom Act, the NSA was re­quired to give up con­trol of the data­base. In­stead, the phone com­pan­ies keep the re­cords them­selves, and the NSA can get court ap­prov­al to search for par­tic­u­lar re­cords. But crit­ic­ally, the law in­cludes a pro­vi­sion that re­quires phone com­pan­ies to provide “tech­nic­al as­sist­ance” to help the NSA ac­cess the data in a read­able format. That pro­vi­sion en­sures the NSA can ac­cess mil­lions of cell-phone re­cords that had pre­vi­ously been bey­ond its reach.

So while the NSA now has few­er re­cords in its dir­ect pos­ses­sion, the uni­verse of phone-call logs it can ac­cess is ac­tu­ally lar­ger.

New Jer­sey Gov. Chris Christie tried to put him­self above the fray by say­ing the de­bate over sur­veil­lance powers shows why the pub­lic hates the Sen­ate—“end­less de­bate about how many an­gels can dance on the head of a pin.”

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