The FBI found itself in a bit of a pickle in obtaining terrorist Syed Farook and his wife Tashfeen Malik’s phone records because the NSA’s mass surveillance program shut down just days before the massacre.
The Associated Press reported Saturday that investigators cannot obtain NSA phone-snooping records, even with a warrant, after a federal court order announced mere hours before the shootings went into effect. The FBI does have another way to get at least some of those records, however.
The USA Freedom Act passed by Congress last June allows the FBI to obtain approximately two years’ worth of records directly from phone companies. This covers the entire time Malik lived in the United States, but doesn’t include Farook’s records from before that period. Farook, 28, was born in Chicago and lived most of his life in southern California.
FBI Director James Comey would not answer questions on how the NSA program shut down is affecting the ongoing investigation. “I won’t answer, because we don’t talk about the investigative techniques we use,” Comey said Friday. “I’m not going to characterize it.”
U.S. District Judge Michael W. Mosman’s ruling shut down access to the NSA data after November 28—four days before the San Bernardino shootings—under authority of the Foreign Intelligence Surveillance Court. The bulk data-collection of phone records, which were kept for five years, was kept secret by the government, until contractor Edward Snowden leaked the program’s existence in 2013.
Given that federal authorities had access to NSA phone-snooping records almost up until the day of the massacre, the American Civil Liberties Union argued that the program was useless in that it didn’t detect the attack.
“This could only be an example of the failure of that program,” said ACLU lawyer Alex Abdo. “If this were a planned attack and the program did what they claimed it did at the time, they would have detected this attack. It’s not surprising the bulk-collection program didn’t detect it.”