The White House today unveiled a five-point plan to end the National Security Agency’s bulk collection of phone call metadata, preserving what it says is a balance between the intelligence community’s national security needs and the public’s desire to maintain its privacy.
The proposal ends the government’s collection of phone records under Section 215 of the PATRIOT Act as it exists today, keeping that data with telecommunications providers who will store those records for 18 months as they are currently federally mandated to do.
The government would have access to the records only under approval from the secret Foreign Intelligence Surveillance Court (FISC), which must approve the querying of a suspect phone number and only after judicial approval based on a national security concern.
Currently, the NSA collects and stores call metadata, and maps connections between numbers belonging to individuals suspected of terrorism or threatening national security. As the Snowden leaks began last June, the depths of NSA surveillance, including dragnet capturing of all Americans’ phone calls without warrants, drew the ire of civil libertarians, mainstream media and politicians on both sides of the aisle.
The new plan was ordered by President Obama during a Jan. 17 address to the nation on surveillance. During that speech, he ordered the Attorney General and the intelligence community to work together on an adequate solution that would alter the collection of data under Section 215. Obama imposed a March 28 deadline for the proposal, the day FISC is expected to renew the NSA program for another 90-day cycle, the final time it will do so.
The White House proposal, hints of which were released two days ago in a New York Times report, also changes the number of hops the government will be able to collect between suspects from three to two. While apparently a concession, ACLU National Security advisor and attorney Brett Max Kaufman told Threatpost this remains a red flag for privacy advocates.
“It’s unclear, if the government is able to satisfy FISC’s standard of a reasonable, articulable suspicion, why anyone connected to that person would also satisfy that same standard to get their call records?” Kaufman said.
The president’s proposal was a bit more stringent than a similar House Intelligence Committee bill that was introduced on Tuesday, which did not require prior judicial approval; a judge would rule on a request only after the FBI submits it to a provider.
Verizon general counsel Randal Milch said the provider supports the efforts to end bulk collection.
“At this early point in the process, we propose this basic principle that should guide the effort: the reformed collection process should not require companies to store data for longer than, or in formats that differ from, what they already do for business purposes,” Milch said. “If Verizon receives a valid request for business records, we will respond in a timely way, but companies should not be required to create, analyze or retain records for reasons other than business purposes.”
The final two provisions of today’s official proposal say the court-approved numbers can only be used for a limited period of time without again requiring approval from FISC. “The production of records would be ongoing and prospective,” the proposal said.
Also, under court order, the phone companies would be required to provide technical assistance to ensure the records can be accessed in a timely fashion and in an accessible format.
The White House plan would need to be ratified by Congress in order to go into effect, and because of this, the Department of Justice will seek another 90-day renewal from FISC for the program, much to the chagrin of experts.
“EPIC is encouraged by the President’s continued commitment to end the bulk collection program … however, the renewal of the FISC order on Friday would be a disappointing development,” said Alan Butler, appellate advocacy counsel for the Electronic Privacy Information Center (EPIC). “The bulk collection program will not end until the FISC order expires without the President seeking its renewal.”
