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VIII. (U) Statement of Board Members Aditya Bamzai

and Jane Nitze

(U) Congress’s consideration of legislation to reauthorize the call detail records program
of the USA Freedom Act provides occasion to assess not only the program’s costs and benefits,
but also the manner in which Congress can legislate best in rapidly evolving technological areas.
When the Board reviewed NSA’s bulk telephony metadata program in 2014, it was divided. Key
findings on the program’s value split the Board three to two. In Congress and the public sphere,
too, there were disputes, we believe largely in good faith, about the merits of the program. Five
years after the USA Freedom Act was enacted and a new CDR program established, there is less
room for debate. The program was statutorily authorized and constitutional under controlling
precedents. It also was expensive, plagued with data-integrity concerns, and produced minimal
intelligence relative to other national security programs. It is, of course, incumbent on us not to
fall into a cycle of “timidity and aggression,” 355 or to assume we are safe irrespective of, rather
than because of, our security programs. But we have a hard time looking at this particular
program as it actually operated and concluding much other than that the game is not worth the
candle. That’s not to say, though, that a well-designed metadata program, one not restricted by
some of the USA Freedom Act’s statutory limitations, couldn’t succeed.
I.

(S//NF) To get some figures down: Over its short lifetime the CDR program cost, at a
minimum, 100 million dollars. NSA estimates over were given to the
providers alone, on top of the administrative costs of running the program and the resources
expended unpacking and then resolving each of the compliance concerns. Against these costs,
the specific benefit that the CDR program provided was the ability to get a “second hop” of
CDRs in a relatively expeditious manner, without the need for a FISA business-records order for
each “first-hop” number. 356 Yet as noted in Part III(B) of the Board’s report, the program

355 (U) Many have noted that the national security apparatus engages in “controversial action[s] at the edges of the
law,” faces recriminations for those actions, and acts with timidity until a crisis spurs it, once again, to act at the
edges of the law. JACK GOLDSMITH, THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH
ADMINISTRATION 163 (2007). See also 2014 Board Report at 209 (statement of Rachel Brand).
356 (U) The USA Freedom Act does not speak of “hops.” Instead, it uses the following language:
An order under this subsection . . . shall . . . (iii) provide that the Government may require the
prompt production of a first set of call detail records using the specific selection term . . . [and] (iv)
provide that the Government may require the prompt production of a second set of call detail
records using session-identifying information or a telephone calling card number identified by the
specific selection term used to produce call detail records under clause (iii)[.]

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