Obama formally proposes end to NSA's bulk collection of telephone data

Obama is seeking legislation to enact the changes, but it has not settled between competing proposals currently before Congress. Photo: Kevin Lamarque/Reuters

Obama formally proposes end to NSA's bulk collection of telephone data

President says: 'I am confident this approach can keep us safe while addressing the legitimate privacy concerns raised'

Spencer Ackerman in Washington

The Guardian, Thursday 27 March 2014 / http://www.theguardian.com/world/2014/mar/27/obama-proposes-end-nsa-bulk-data-collection

The Obama administration on Thursday formally proposed ending the National Security Agency's bulk collection of all US phone data.

Nearly 10 months after the Guardian exposed the controversial program, based on leaks from Edward Snowden, President Obama announced that he would seek legislation that would require the NSA to seek an individual order from the secret Fisa court before phone companies turn over data on their customers.

"I have decided that the best path forward is that the government should not collect or hold this data in bulk," Obama said in a statement. "Instead, the data should remain at the telephone companies for the length of time it currently does today."

The move goes further than Obama’s position on bulk surveillance in January, when the president left the door open to the possibility of the data being held by a private-sector third party. That position was vigorously opposed by the phone companies and criticised by proponents and critics of the NSA alike.

Bulk phone data would no longer be collected by NSA under the latest proposals. Instead phone companies would, in response to a court order, turn over a suspicious phone number as well as all the numbers it called and received, and all numbers those numbers called and received, on an “ongoing and prospective basis”, according to an administration official.

The administration has yet to decide on a specific time limitation for querying the data, but “there would be some limited time period,” the official told reporters on Thursday. “That’s something we’re going to have to talk with Congress about.”

The Obama administration is seeking legislation to enact the changes, but it has not settled between competing proposals currently before Congress.

“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.

But the NSA is not yet out of the business of harvesting phone data in bulk, which it has done in secret in various forms since late 2001. The administration said it would seek approval from the Fisa court to continue the programs for another 90-day period under restrictions in place since January, until Congress passes a bill along the administration’s guidelines.

A senior administration official indicated that the legal standard by which the court could order phone companies to turn over customer data would be a "reasonable articulable suspicion" of a phone number’s connection to terrorism or espionage. That is a lower threshold than relevance to an ongoing terror investigation, the language of Section 215 of the Patriot Act, the current authorisation the administration claims for bulk domestic phone data collection.

Verizon’s top lawyer, Randall Milch, sounded a tone of wariness over the specifics of the proposal while praising it overall. “If Verizon receives a valid request for business records, we will respond in a timely way, but companies should not be required to create, analyse or retain records for reasons other than business purposes,” Milch wrote Thursday on Verizon’s blog.

Since January, the NSA has been permitted to query its phone data troves only after the Fisa court first certifies it possesses reasonable, articulable suspicion of a record’s connection to terrorism. “So that provides, I think, a good baseline, and a good point from which we can work with Congress to develop the proposal,” said the senior official, who would not agree to be identified.

It also aligns the proposal with a bill put forward on Tuesday by the leaders of the House of Representatives intelligence committee, Republican Mike Rogers of Michigan and Democrat Dutch Ruppersberger of Maryland, which uses that standard.

But a key difference between the committee's proposal and the one outlined by administration officials on Thursday was a judge’s prior approval for individual phone numbers. The House panel wants the surveillance judges to review the specific collection after the fact, something the administration rejects in all but emergency cases.

A rival bill proposed by members of the Senate and House judiciary committees would require prior judicial approval for specific phone data, but would set the legal threshold for acquisition of the data higher than what the administration desires.

Earlier this week, the chairwoman of the Senate intelligence committee, Democrat Dianne Feinstein of California, said she intended to schedule a hearing to examine Obama’s surveillance proposals alongside those of her House counterpart.

The Obama administration left several aspects of its desired surveillance policy unaddressed on Thursday.

Although officials explaining the policy on a conference call with reporters said they wanted the government to no longer “hold” the data, they did not unveil any changes to the NSA’s so-called “corporate store” of analysed phone records. That store, according to the government’s official privacy and civil liberties watchdog, contains tens of millions of phone numbers, and analysts do not face any restrictions on searching through it.

Caitlin Hayden, a spokeswoman for the National Security Council, clarified that the Fisa Court will approve a new set of minimisation procedures to provide privacy protections around the use, retention and dissemination of phone data.

"The details of where the data would be stored and accessed once it is received would be governed by those minimization procedures, just as minimisation procedures currently govern how we handle the data,” Hayden said.

Nor did the administration outline any changes to its consideration of privacy rights for non-Americans abroad, something Obama said in his January speech the NSA needed to consider.

NSA’s ability to search for Americans’ identifying information in its troves of phone and internet communications content appears to be unimpeded, a function the USA Freedom Act would prevent. Nor would NSA be prevented from surreptitiously undermining online encryption standards.

Critics of bulk surveillance, in and outside Congress, praised the administration for its shift. "I'm glad the president has embraced my bipartisan legislation to end the dragnet collection of Americans' private phone records,” said Senator Mark Udall, a Colorado Democrat, who said he had long felt like a “voice in the wilderness” on the NSA.

But Udall, like privacy advocates, urged Obama to “immediately end” the phone records dragnet rather than re-submit it for another 90-day Fisa Court approval.

Privacy groups also expressed wariness that Obama’s proposals on Thursday only covered phone data. “This raises the possibility that the government could collect other types of information in bulk, including internet metadata, location information and financial transactions,” said Harley Geiger of the Center for Democracy and Technology. “Unless legislation addresses all types of data, not just phone records, then businesses remain at risk of receiving an order to turn over records on all of their customers and to keep quiet about it.”

Obama’s position on the proper scope of the NSA has changed substantially, by degree, in the 10 months since the Guardian and other news outlets began publishing stories based on documents Snowden provided.

In June, Obama, a former constitutional law professor, greeted the revelations of bulk domestic call records collection by saying he thought he had “struck the right balance.” Over the course of 2013 and early 2014, two high-level review panels, one of which Obama personally empowered, disagreed and proposed changes, while a federal judge in December found the collection to be on the precipice of constitutional violation.

Opposition in Congress was substantial, if short of a majority to end the practice. But in recent weeks, members of the House of Representatives publicly threatened to allow the provisions of the Patriot Act the administration relied upon for bulk collection to expire next year if Obama did not act first.

The fear of losing the basis for a program that officials consider critical – although they have backed away from earlier claims it has prevented terrorist attacks – alongside resistance from the telecos appears to have contributed to Obama’s most recent shifts in position.

Left unspoken on Thursday was the fate of Snowden, the former NSA contractor whose disclosures prompted the administration to restrict its surveillance dragnets.

Snowden is in Russia on temporary asylum after the State Department cancelled his passport. The Justice Department is considering an indictment on espionage-related charges.

Even as US government officials in both the executive and legislative branches have moved closer to ending bulk domestic surveillance, the practice Snowden says prompted his disclosures, they have accused him without public evidence of endangering the lives of US troops in the future and even laid responsibility for the Russian invasion of Crimea at his feet.

At the White House, the reversal in positions by Obama on bulk data collection has not translated into leniency for Snowden. “There's no change in our position that he needs to return and face the felony charges against him,” Hayden said.