Plans Would End NSA Collection ProgramObama, House Members Offer Separate But Similar Plans
Bowing to strong public concerns about privacy, President Obama and a bipartisan group of House members separately introduced plans to eliminate the National Security Agency's bulk collection of citizens' phone records.
At separate press conferences on March 25, Obama as well as the Republican and Democratic heads of the House Permanent Select Intelligence Committee said the existing program is legal, but they conceded that many Americans believe their privacy is at risk because of the program.
"We had to deal with a perception; we had to get the confidence of the American people," says Rep. C.A. Dutch Ruppersberger, the Maryland Democrat who serves as ranking member of the House intelligence panel and a prime sponsor of the FISA Transparency and Modernization Act of 2014.
Nearly 4,000 miles away in The Hague, where he was attending a nuclear security summit, Obama said he is confident his plan would allow the government to deal with the dangers of terrorist attacks while addressing privacy concerns. "I'm looking forward to working with Congress to make sure we go ahead and pass the enabling legislation quickly, so that we can get on with the business of effective law enforcement."
The White House didn't immediately provide details of its proposal, which according to a New York Times report calls for ending the National Security Agency's collection of metadata about Americans' telephone calls. The bulk records would remain with phone companies, and the NSA could request specific records only after getting permission from a FISA (Foreign Intelligence Surveillance Act) Court judge, using a new type of court order.
The House legislation, like the president's proposal, would not require that phone companies keep any records for more than 18 months, which is the current law. If enacted, the House measure would require the government to obtain court approval before seeking the records. But to expedite the matter in an emergency, it would not have to submit evidence until after receiving the records. If the court eventually disapproves, it could order the government to purge any metadata it received.
Judicial review after the fact troubles some privacy advocates. "If the intelligence agencies believe the FISA court would move too slowly to authorize domestic surveillance beforehand, then the solution is to provide the FISA court with more resources," says Harley Geiger, senior counsel at the Center for Democracy and Technology, a consumer advocacy group. "The solution should not be to provide intelligence agencies with virtual subpoena authority over company records."
Geiger objects to the president's proposal, too, because it only applies to phone records and not other types of communications, such as e-mails. "Combined, these two proposals would get us close to where we need to be, but separately they fall short of what is needed," Geiger says.
To build support for the bill, the House measure contains an array of provisions that go beyond NSA surveillance practices. Those provisions would codify a ban on the bulk collection of bulk firearm sales records, library records, medical records, tax returns, educational records and other sensitive personal records.
The House bill also would prohibit the government from using the new targeted metadata procedure to obtain the content of any communications or any personally identifiable information. Just as under the current program, the bill's sponsors say, the government couldn't use its new authority to listen to phone calls or read the content of e-mails. It could only review metadata about the calls, such as time, duration and who was called.
Other provisions in the bill would:
- Require the FISA court, which reviews and approves requests to obtain phone records, to keep Congress informed of any significant interpretations of the FISA law;
- Create an independent privacy advocate who can be appointed to argue against the government's position to guarantee that judges hear both sides of a case; and
- Require a declassification review of every decision, order or opinion issued by the Foreign Intelligence Surveillance Court that includes a significant construction or interpretation of the law.
Striking a Balance
"This bill strikes a balance between protecting the NSA's ability to collect critical data and increasing the transparency of our intelligence programs," says Rep. Terri Sewell, R-Ala., who championed the declassification provision in the bill.
Once secret, the NSA's bulk collection program became public last June when documents leaked by former contractor Edward Snowden were published. The idea behind collecting bulk data is that the government could tie a suspected terrorist with others by seeing the telephone number called as well as the time and duration of that call. If such records were available, advocates contend, authorities might have linked the terrorists behind the 9/11 attacks.
Still, privacy and civil liberties advocates argue that the collection of all citizens' data is unnecessary, and that the metadata could tell a lot about each individual (see What My Droid's Metadata Says about Me).
In January, Obama directed the attorney general and intelligence community to propose a new approach to dealing with the bulk collection of metadata by March 28 (see President Describes Restraints on Metadata-Collection Program).