NSA's bulk collection of telephone metadata likely to end soon
One way or another, there's a good chance that the government's bulk collection and storage of telephone metadata will end soon.
How it will end — and the specific rules by which government can still access phone data — remain to be seen.
The Obama administration and the House have plans to transfer storage of data to private phone companies. But there are differences over the role of judges in approving government retrieval of certain records.
Phone companies and privacy advocates have questions about the details of a new system involving the work of the National Security Agency.
In introducing his plan on Thursday, President Obama said he has decided that “the government should not collect or hold this data in bulk.”
He pledged to work with Congress on new rules that would accommodate counterterrorism investigations while protecting constitutional liberties.
“I am confident that this approach can provide our intelligence and law enforcement professionals the information they need to keep us safe while addressing the legitimate privacy concerns that have been raised,” Obama said in a written statement.
Under the administration's proposal, the government must obtain a judge's approval before accessing phone records, though exceptions could be made in cases of national security emergencies.
“Legislation will be needed to permit the government to obtain this information with the speed and in the manner that will be required to make this approach workable,” Obama said.
The House plan would allow government agencies to obtain records from phone companies without prior approval from the special court that oversees the Foreign Intelligence Surveillance Act. The court would review the records acquisition later.
Michigan Republican Rep. Mike Rogers, chairman of the House intelligence committee, said requiring judicial approval for record searches in every case would slow down probes, giving terrorism suspects “greater protections than those given to U.S. citizens in criminal investigations every day in this country.”
Overall, however, Rogers said he's glad “the president has moved our direction” on an NSA overhaul.
The general idea of ending government storage of metadata appears to have bipartisan support.
House Speaker John Boehner, R-Ohio, said this week that the intelligence committee's bill starts “a bipartisan conversation” about surveillance programs, and he added, “I expect part of this effort will include the end of the government holding onto bulk data.”
James R. Clapper, director of national intelligence, said the president's plan — with the passage of congressional legislation — will ensure that “we have the information we need to meet our intelligence requirements while protecting civil liberties and privacy and being as transparent as possible.”
As the administration and Congress debate new NSA rules, Obama has directed the Justice Department to ask the special intelligence court for a 90-day extension of the existing program.
Under both plans, phone companies would in some way be compelled to provide metadata, including incoming and outgoing phone numbers and call times, in a readily usable form.
The phone companies say they will want to study the details of what they will be compelled to do.
Randal Milch, general counsel for Verizon, said phone companies should not be required to do anything more for the government than what “they already do for business purposes.” Milch said phone companies respond in a timely way but “should not be required to create, analyze or retain records for reasons other than business purposes.”
Among other issues: possible compensation for the phone companies and lawsuit protection for claims made against them over these records.
Civil libertarians, meanwhile, generally criticized the House plan, saying judicial approval should always be required when the government reviews phone records.
The Obama plan, they said, does not go far enough and should include restrictions on Internet activity and financial records as well. They say many questions on specifics remain.
Anthony D. Romero, executive director of the American Civil Liberties Union, called Obama's plan “a major step” but said, “This must be the beginning of surveillance reform, not the end.”
Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, said Obama does not need to go to Congress “to end a practice that it never should have started.”
“The very fact that the president's plan requires legislation means he has something in mind other than simply ending the program,” she said.
Trevor Timm, executive director of the Freedom of the Press Foundation, said he supports Obama's emphasis on judicial review of government access to private data, but he said it's important to see the details of what emerges from Congress.
If the Obama plan winds up looking too much like the House Intelligence Committee plan, Timm said, “the NSA may also be handed broad new powers to violate the privacy of Americans while the data sits at the phone companies.”
Obama called for new NSA rules in a January speech, and he gave aides until March 28 — Friday — to develop legislation to end the NSA's ability to sweep up and store all kinds of telephone records.
NSA surveillance techniques became public last year with leaks from former contractor Edward Snowden. The revelations, including reports that the agency has spied on foreign leaders, have triggered criticisms of Obama.
Tweeting shortly after Obama's audience on Thursday with Pope Francis, Sen. Rand Paul, R-Ky., said the president should have told the pontiff: “Forgive me father for I have spied.”
Snowden, now living in Russia while facing charges in the United States, praised Obama's efforts this week.
“This is a turning point, and it marks the beginning of a new effort to reclaim our rights from the NSA and restore the public's seat at the table of government,” Snowden said in a statement released by the ACLU, which is helping with his legal representation.
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