March 25

At a presser today in the Netherlands, President Obama confirmed reports that his administration is preparing to release a plan to end National Security Agency bulk information collection and leave that information with phone companies instead — albeit not for a longer duration than they are already required to hold the information for. Obama described the plan as “workable,” adding: “This insures that the government is not in possession of that bulk data.”

What makes this surprising is that old axiom about presidents: they don’t relinquish power willingly. No matter what they might say about the appropriate limits of executive authority before they take office, once they’re actually in the White House, they want to hold on to every shred they can.

Obama is now poised to give up some of his power. But it needs to be restated that this would not have happened without all those revelations from Edward Snowden.

What will Obama’s proposal look like? Charlie Savage of the New York Times reported:

The Obama administration is preparing to unveil a legislative proposal for a far-reaching overhaul of the National Security Agency’s once-secret bulk phone records program in a way that — if approved by Congress — would end the aspect that has most alarmed privacy advocates since its existence was leaked last year, according to senior administration officials.

Under the proposal, they said, N.S.A. would end its systematic collection of data about Americans’ calling habits. The records would be stay in the hands of phone companies, which would not be required to retain the data for any longer than they normally would. And the N.S.A. could obtain specific records only with permission from a judge, using a new kind of court order.

And Ellen Nakashima of the Post reports something similar coming from the bipartisan leadership of the House Intelligence Committee:

The bill, according to congressional aides, would bar the mass collection of different types of information, including phone call records and records of Internet activity. It also covers location information, aides said.

Significantly, it would not require telecommunication companies to retain data for longer than they do now. And it would require that the government serve a directive on the company that is being asked for data.

But unlike other pending legislation, it does not call for judicial approval of a specific phone number before a request for data is submitted to a company. Obama in January ordered that the government obtain such approval to ensure that each number is reasonably suspected of being linked to a terrorist group.

Just taking these two initial reports at face value, it remains to be seen whether the final reforms that ultimately pass Congress and are signed by the President will require the NSA to get permission from the FISA court before they can access the records, or whether the NSA would only have to get approval after they had already gotten the records they wanted. That’s an enormous difference.

It may well be that part of the administration’s calculation is that as far as tools for preventing terrorism go, bulk collection isn’t a particularly useful one, so it isn’t that big a deal to give it up. After all, the NSA hasn’t been able to point to a single terrorist plot that was foiled by the bulk phone data collection. And they can still get the info when they have an actual suspect they’re investigating.

Still, despite Obama’s assurances that it was healthy for us to have a conversation about the tension between security and privacy, had Edward Snowden not revealed the existence of this and other programs, the president would have kept them secret. It’s only because they were exposed that he felt the need to back up his principles about civil liberties with action.

Meanwhile, the fact that the leaders of the Intelligence Committee — not exactly guys known for their abiding concern for privacy — are willing to scale the program back suggests that they believe doing so won’t limit the NSA’s ability to do its work in any meaningful way. So nobody has been able to convincingly argue that holding my phone records, your records, and every other Americans’ records was truly vital to national security.

Assuming some version of these proposals passes Congress and gets signed into law, we can be pleased that the bulk collection will be over. But at the risk of becoming a broken record, I have to point out that when it comes to surveillance, phone metadata is nothing compared to what’s going to be possible in five or ten or fifteen years as technology advances. And since Obama isn’t pulling back because he was forced to by the Supreme Court, which might have set a firm precedent in the process, when the next technological advance comes along that provides some new way to track people that today sounds almost like science fiction, the NSA is going to say, “Ooo, we want that.” They may even be working on some new surveillance techniques right now.

What has changed isn’t just the different ways the government can watch people, but their ability to watch everyone, then decide later which information is important. Today’s news suggests they may be in the process of scaling back one way in which they’re doing that right now. But their desire to keep doing it isn’t going to go away.