The Controversy Over Ted Cruz Possibly Revealing 'Classified' Info During The Debate Shows Stupidity Of Overclassification

During the GOP Presidential debate earlier this week, there was something of an awkward moment when Ted Cruz was defending the USA Freedom Act and Marco Rubio seemed to hint at the idea that Cruz had just revealed classified information. Here was the basic exchange, which came after Rubio attacked Cruz for supporting the USA Freedom Act and not for renewing section 215 of the PATRIOT Act. Cruz argued that the USA Freedom Act actually gives the NSA more ability to track terrorists.

It strengthened the tools of national security and law enforcement to go after terrorists. It gave us greater tools and we are seeing those tools work right now in San Bernardino.

And in particular, what it did is the prior program only covered a relatively narrow slice of phone calls. When you had a terrorist, you could only search a relatively narrow slice of numbers, primarily land lines.

The USA Freedom Act expands that so now we have cell phones, now we have Internet phones, now we have the phones that terrorists are likely to use and the focus of law enforcement is on targeting the bad guys.

[...]

And the reason is simple. What [Rubio] knows is that the old program covered 20 percent to 30 percent of phone numbers to search for terrorists. The new program covers nearly 100 percent. That gives us greater ability to stop acts of terrorism, and he knows that that's the case.

In response to this, Rubio suggested that Cruz may have revealed something that he should not have:

Let me be very careful when answering this, because I don't think national television in front of 15 million people is the place to discuss classified information. So let me just be very clear. There is nothing that we are allowed to do under this bill that we could not do before.

This was partially amusing, given that Rubio has a bit of a history with leaking classified info about this very program -- though, perhaps that's why he's now trying to be extra careful.

In response to this however, Senate Intel Committee boss Richard Burr initially said that he had asked the Intelligence Committee to "look at it" and "see if there was any validity" to the claims that Cruz had revealed classified information. A few hours later, Burr, along with Senator Dianne Feinstein said that the Committee wasn't going to investigate Senator Cruz's statements, contrary to Burr's earlier statement.

Of course, as Marcy Wheeler points out, by Burr saying that he was going to investigate this, he more or less confirmed Cruz's statement that USA Freedom expanded the NSA's ability to collect internet phone metadata (i.e., Skype and the like) along with more mobile phone data. Of course, the statement about the NSA only getting "20 to 30%" of phone records isn't secret. It was revealed by the Washington Post nearly two years ago, seconded by the Wall Street Journal (which argued it was actually less than 20%).

Of course, as Julian Sanchez explains in detail, none of this is really new -- it's just that the whole thing is a bit confusing:

Because 215 previously provided only for the acquisition of existing business records, but not the creation of new records - such as records of call info purged of location data - some carriers may have been either unwilling or unable to comply with the new records orders as applied to mobile telephony records. The USA Freedom Act explicitly provides for data to be produced in a format specified by the government, and requires carriers to provide the government with any "technical assistance" needed to conduct queries, which would resolve any such obstacles, assuming they had not already been dealt with by that point. Thus, Cruz could be right that, when compared with at least the summer 2013 iteration of the bulk telephony program, the successor program authorized by USA Freedom would allow the NSA to run queries across the entirety of the calling records held by companies, rather than the more limited subset of (mostly landline) records government had then been collecting under the 215 authority. At the same time, of course, the quantity of records actually held by the government would nevertheless be drastically reduced, because they would only receive the much smaller number of records actually responsive to specific queries.

Nevertheless, Rubio could be right that, in a different sense, there is "nothing we are allowed to do under this bill that we were not allowed to do before." That's not literally entirely accurate, since the language allowing government to specify the format of records and requiring the provision of "technical assistance" are indeed new. But the old version of Section 215 clearly did, in general, allow the government to obtain cell phone records - as, indeed, do many other authorities, including National Security Letters. While NSA was apparently, at least temporarily, not obtaining such records under this one particular program for a variety of reasons, they certainly had the legal authority to obtain cellular call detail records - and, indeed, had even previously obtained call records including location information - pursuant to Section 215 and a host of other authorities. In short, even if Cruz is right that USA Freedom helps bring cell records back within the scope of the program that will replace NSA's bulk collection, Rubio can simultaneously be correct to say there's nothing qualitatively new on that score. When the government obtains cellular telephony records under this new program, it will do so pursuant to specific, targeted Section 215 orders - something that the government has clearly had the ability to do all along.

But here's the thing that struck me about all of this: why is any of this "classified" in any way in the first place? Law enforcement has long had the ability to tap phones or get targeted phone records. That's been well-known for ages -- and yet criminals still use those things. Revealing the fact that such surveillance can occur shouldn't be classified in the least. It should be out in the open where it can be debated. The new powers under the USA Freedom Act, which are both broader in scope and more limited at the same time (in that they need to be more targeted) don't reveal anything particularly useful to terrorists. They still know that the NSA is trying to track them, and it has the power to do so. It always has. There is no need to classify that, and the idea that it might even trigger an investigation is ridiculous.

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