The NSA is likely to get out of the business of keeping your phone records


A member of the group Code Pink protests the National Security Agency's collecting of phone records in front of the Justice Department in January. (Reuters/Larry Downing)

For those not following the ins and outs of National Security Agency surveillance reform, the one big takeaway is this: There is emerging consensus from 1600 Pennsylvania Avenue to Capitol Hill that the government’s mass collection of data on Americans’ phone calls must end.

President Obama on Tuesday said the intelligence community has given him a plan to get there, and key factions in Congress have developed various alternatives.

The questions are: Which version or which hybrid of versions will emerge the winner? And what will the result mean for Americans?

The answer on the former: It’s too soon to tell.

The answer on the latter: No matter which version emerges, the days of the government collecting your phone records in massive amounts are numbered.

In truth, momentum has been building toward that ever since last June, when the NSA’s program to collect billions of records on Americans’ phone call activities was disclosed in a document leaked by former intelligence contractor Edward Snowden.

NSA has been collecting “metadata” -- numbers dialed, times and lengths of calls, not the actual content of conversations. The goal was to have a haystack of numbers that analysts could search through when they were looking for clues to terrorists who could be plotting attacks. Several major phone companies have been turning their caches of data over to the agency every day since 2006, under court orders.

Though the administration and some judges have said that the program is lawful and constitutional, Obama concluded in January that its scale -- collecting tens of billions of citizens’ records that are stored for five years at the NSA -- was making too many people uncomfortable about the potential for abuse. He ordered his subordinates to find a way to end the government’s collection of so many records.

Obama said he thinks the plan he’s got is “workable.” In broad strokes, the phone companies would keep records about who called whom just as they always have. (Some companies keep those for a year or two, others for 10 years.) A judge would determine that a number that the government wants data for is linked to a terrorist organization. Then the phone company would send back to the government all call activity linked to that suspect number, in real time, as it comes in.

This plan has two key features: It requires judicial approval before a number is searched. That is a requisite for privacy advocates. Second, it does not require the phone companies to hold the data longer than they normally would. That was a prospect the firms vigorously opposed.

But the downside, privacy advocates say, is it apparently does not address all forms of mass collection of data — just telephone records.

The underlying law used to justify the NSA collection, Section 215 of The Patriot Act, can be interpreted to apply to other forms of data, such as credit card records and phone location data, reform advocates argue. “If we’re going to fix it, let’s fix it right,” said Harley Geiger, Center for Democracy & Technology senior counsel.

A bill introduced Tuesday by the leaders of the House Intelligence Committee would also end bulk collection. And the bill seems to go farther than the White House approach in that it would outlaw such collection of other types of data, including, aides say, credit card records and phone location data.

But it would allow the government to submit the phone numbers to the companies first, before seeking a judge’s okay that the numbers were linked to a terrorist group or foreign power. The lack of prior judicial approval makes that approach unworkable for many privacy advocates.

What’s significant about the bill, introduced by Reps. Mike Rogers (R-Mich.) and C.A. Dutch Ruppersberger (D-Md.), the intelligence committee’s chairman and vice chairman respectively, is that its sponsors are staunch defenders of the national security agencies. The fact that they have a bill to end bulk collection shows how far the political climate has shifted in the past year.

A third major approach --what privacy advocates consider the “gold standard”-- is the USA Freedom Act, co-sponsored by Rep. F. James Sensenbrenner Jr. (R-Wis.) and Sen. Patrick Leahy (D-Vt.). That bill, which has not advanced in either house of Congress, would end bulk collection in all forms. It would also require prior judicial approval before companies can turn over data linked to a particular number. The Obama administration plan and the House intelligence leadership’s bill would allow the government to seek records two “hops” removed from the suspect number.

Hill watchers say it’s too soon to tell what version can gain the necessary votes to pass. Reform advocates in Congress are feeling pretty good, though, at least about prospects in the House. There, between the libertarian right and civil libertarian left, they say, they have the votes to get USA Freedom passed if it can get to the floor. But it is not clear if GOP House leadership will let that happen.

The Senate is murkier. A number of different factions cut across party lines. And no one group seems to have an outright majority.

Some analysts say that in the end, something less ambitious than the USA Freedom Act but stronger than the Obama administration and House intelligence leadership version is probably the most likely to emerge. Prior judicial approval will have to be included.

If no one does anything, in June 2015, the underlying law --Section 215 --expires. It is widely acknowledged that Congress lacks the votes to extend it without changes. Bulk collection under that authority would end. As Michelle Richardson of the ACLU says: “Let the whole dang thing sunset.”

But, reform advocates including Richardson say, they want to take advantage of the momentum now to make broader fixes. The bottom line: Change is in the air.

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