For those not following the ins and outs of National Security Agency surveillance reform, the one big takeaway is this: There is an emerging consensus from 1600 Pennsylvania Avenue to Capitol Hill that the government’s mass collection of data about Americans’ phone calls must end.
President Obama said Tuesday that 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 to the former: It’s too soon to tell.
The answer to the latter: No matter which version emerges, the days of the government collecting Americans’ phone records in bulk are numbered.
In truth, momentum has been building toward that since June, when the NSA’s program that collects billions of records on Americans’ phone call activity was disclosed in a document leaked by former intelligence contractor Edward Snowden.
What the NSA has been collecting is “metadata” — numbers dialed, times and lengths of calls — not the content of conversations. The goal was to have numbers that analysts could search when they were looking for clues to terrorism plots. Several major phone companies have been turning over their caches of data to the agency every day since 2006, under court orders.
Although the administration and some judges have said 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 has is “workable.” Essentially, the phone companies would keep records about who called whom just as they always have. (Some companies keep such information for a year or two, others for 10 years.) A judge would determine that a number the government wants data on is linked to a terrorist organization. Then the phone company would send the government all call activity linked to that number, in real time, as it comes in.
This plan has two key features: It requires judicial approval before a number can be searched, 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 opposed.
But a downside, privacy advocates say, is that it apparently does not address all forms of mass data collection — just telephone records.
The law used to justify the NSA collection, Section 215 of the USA 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 and end bulk collection for all types of data,” said Harley Geiger, senior counsel at the Center for Democracy & Technology.
A bill introduced Tuesday by the leaders of the House Intelligence Committee also would end bulk collection. And the measure seems to go further than the White House’s approach in that it would outlaw such collection of other types of data. But it would allow the government to submit the phone numbers to the companies first and then seek 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 Intelligence Committee Chairman Mike Rogers (R-Mich.) and Rep. C.A. Dutch Ruppersberger (Md.), the panel’s ranking Democrat, is that its sponsors are staunch defenders of the national security agencies. The fact that they have a measure that would end bulk collection shows how far the political climate has shifted in the past year.
The Obama administration and House intelligence panel’s bill would let the government seek records two “hops” removed from a suspect number.
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 J. Leahy (D-Vt.). That bill, which has not advanced in either chamber of Congress, would end bulk collection in all forms. It requires judicial approval before companies can turn over data linked to a particular number.
Capitol Hill watchers say it’s too soon to tell what version might gain the necessary votes to pass.
If no one does anything, the underlying law — Section 215 — will expire in June 2015. 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 American Civil Liberties Union said, “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.