Privacy advocates are cautiously applauding the reports that the Obama administration will unveil a legislative proposal to end the National Security Agency’s collection of Americans’ bulk phone records, but are concerned what the fine print on that proposal might hold.
“Given all the various ways that the NSA has overreached, piecemeal change is not enough,” said Electronic Frontier Foundation legal director Cindy Cohn and EFF legislative analyst Mark M. Jaycox.
A report in the New York Times last night explains that the administration wants to end the intelligence agency’s collection and storage of phone records; those instead would stay with telecommunications providers who would continue to store them for 18 months as they are federally mandated to do. The NSA currently stores those records for five years, longer if the agency is unable to crack an encrypted communication from a suspect.
The NSA would need a judge’s OK under a new proposed court order to be able to access those records going forward, the Times article said. The legislative proposal is a response to a March 28 deadline imposed by the president in January during a speech in which he promised significant NSA reforms to the agency’s collection and use of phone call metadata. The metadata—records of calls made to and from a suspect, and their duration—is used to map connections between foreigners thought to be involved in terrorism. The NSA’s collection of metadata admittedly also ensnares call data from Americans, which is supposed to be outside the scope of the program and obtainable only with a court order.
“This is just one example of where these surveillance programs were approved in secret by all three branches of government, but could not withstand public scrutiny, so much so that the president has come around and decided reform is necessary,” said Brett Max Kaufman, National Security Fellow and attorney with the American Civil Liberties Union. “Today he apparently abandoned that need to engage in bulk collection; that shows that secret policies will not hold up to public scrutiny.”
On Friday, the current authorization from the secret Foreign Intelligence Surveillance Court which authorizes the collection program is set to expire. Under the proposal, the president is expected to ask the court to renew the program for another 90-day cycle, administration officials told the Times. Once those 90 days are up, reforms are expected to kick in.
The House Intelligence Committee today also drafted a bill that would end the NSA program and keep phone records with providers. Similar to the president’s proposal, the House bill would prevent the NSA from collecting records of phone calls and Internet activity, but unlike the White House proposal, it would not require a judge’s prior approval for a phone number before that request is submitted to a provider, the Washington Post said. A judge would have to rule on the request after the FBI submits the request to the provider.
“If there is no judicial authorization beforehand, I don’t see the civil liberties community getting behind it,” Harley Geiger, senior counsel for the Center for Democracy & Technology, told the Washington Post.
The USA FREEDOM Act seeks to ban the collection of any records, including Internet searches, email and other electronic communication. The president’s proposal and the House bill address only phone metadata.
“It’s important to keep in mind that today’s proposal is a step in the right direction,” Kaufman said, “but wouldn’t solve all the problems that need to be addressed.”
The EFF, meanwhile, threw its endorsement to the proposed USA FREEDOM Act from Judiciary chairmen Sen Patrick Leahy and Rep. Jim Sensenbrenner, saying that a new proposal is unnecessary.
“It’s a giant step forward and better than either approach floated today since it offers more comprehensive reform, although some changes are still needed,” Cohn and Jaycox said.
The new court order under which the NSA would operate, according to unnamed administration officials, would require phone companies to provide records in a compatible format, and it must include data about new calls placed or received after the order is granted, the New York Times article said. The government would also be able to seek records on calls up to two calls, or hops, away from a suspect’s number.
“The executive branch does not need congressional approval to stop the spying; nothing Congress has done compels it to engage in bulk collection. It could simply issue a new Executive Order requiring the NSA to stop,” the EFF’s Cohn and Jaycox said.
Many of these reforms were laid out in the president’s January speech, which called for increased Executive branch oversight of the intelligence community’s dragnet surveillance activities. He ordered annual reviews by the Attorney General and Director of National Intelligence that would help declassify Foreign Intelligence Surveillance Court opinions that have broad privacy implications. Obama also called on Congress to establish a panel of privacy experts outside of government to render opinions on significant cases before the FISC hears them.
The many reforms the president proposed came from a review board’s recommendations in December. The board recommended to the president that metadata be left with the telecommunications providers who already store it for business purposes, or that it be handed over to an independent third party. It also recommended at the time that the NSA director job be Senate-confirmed and a civilian. That was shot down, however, when Obama announced that the NSA director would continue to be the head of U.S. Cyber Command, a military position.