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The New Phone Metadata Program

According to the New York Times, the President has decided to kill the existing NSA phone metadata program and come up with a substitute that leaves the metadata with the phone companies.  The decision will limit the government’s ability to find older connections, since few companies hold records for three or more years; it will also be hard to construct a social graph that combines customers of different carriers.

This may have been inevitable when large swaths of the Republican party decided to treat NSA as though it were an arm of Organizing for America.  But even so, the President’s decision is disappointing for other reasons.  The key passage for the future is this passage in the NYT story:

In recent days, attention in Congress has shifted to legislation developed by leaders of the House Intelligence Committee. That bill, according to people familiar with a draft proposal, would have the court issue an overarching order authorizing the program, but allow the N.S.A. to issue subpoenas for specific phone records without prior judicial approval.

The Obama administration proposal, by contrast, would retain a judicial role in determining whether the standard of suspicion was met for a particular phone number before the N.S.A. could obtain associated records.

The administration’s proposal would also include a provision clarifying whether Section 215 of the Patriot Act, due to expire next year unless Congress reauthorizes it, may in the future be legitimately interpreted as allowing bulk data collection of telephone data.

The House intelligence committee has been working to produce a bipartisan replacement for the metadata program.  The President had a chance, rare for him, to embrace bipartisanship and work with the House committee.  This certainly looks doable, since it appears from press coverage that the differences between the White House and the House approach are modest.

Instead, the White House just couldn’t resist sniping at the House and posturing itself as a hair more privacy protective than the bipartisan House approach.  This is a sadly familiar story; the White House did the same thing on CISPA, the cybersecurity information sharing bill.  There the White House tacked left at the last minute, threatening to veto a bipartisan House bill because it lacked privacy protections that the President’s own bill hadn’t included.

So which approach is better?  Looking at the press coverage, the White House is highlighting two differences in approach.  One seems completely symbolic — deciding how section 215 should be interpreted between the time the new bill passes and the time section 215 expires.  But there may be no such interim, since legislation takes a long time to pass, and in any event the new bill is likely to repeal the current program.

The other difference, requiring the FISA court to evaluate each request for phone data, is a bigger deal.  It’s also problematic.  First, it is inconsistent with criminal practice, where subpoenas are routinely served by investigators without court involvement.  Does the administration think that stopping cross-border terror attacks is less urgent than investigating bank robberies?

Second, I’m not aware of any circumstances where judges make “reasonable articulable suspicion” determinations in advance.  In fact the whole point of the “articulable” part of that test is that the government needs to be able to explain itself later to a judge. What does judicial review of such a standard look like?  Do the judges have to decide that the phone number also looks suspicious to them or just that it’s reasonable for the government to be suspicious?

Third, the metadata program is needed mainly to speed up a cumbersome process of mapping contacts more or less by hand, but the administration’s proposal adds new delays by injecting the court into the front end of the process.  No one knows how or whether that will work, because we’ve never put the courts into that stage.

Finally, there is at least some reason to worry that the administration is going to inject the court into every request for data from the carriers.  I hope not, because that would be completely unworkable. Remember, in the new system, all the data remains with the phone companies, so assembling one suspicious character’s social graph means first assembling a list of all the people he calls, which is easy — just serve his phone company with the request — and then assembling a list of his contacts’ contacts. That’s the second hop.  To collect second-hop records means obtaining records from every carrier whose customers showed up on the first hop.  Right now, NSA can move from the first hop to the second with the click of a mouse.  But under the proposed new system, every hop requires a batch of new subpoenas to a batch of carriers.  That’s going to slow the process quite a bit. Adding the courts to the process, though, will turn it into a morass.  I hope that’s not what the administration has in mind.

At best, this is an opportunity missed.  The President seems genuinely convinced that his efforts to build bridges to Republicans have failed because of right-wing intransigence.   Sorry, Mr. President, it’s stupid point-scoring by your staff, like this leak, that makes you look like someone who either can’t do Congress or doesn’t care to.



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Eugene Volokh · March 25, 2014

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