The secret FISA court has approved two of President Barack Obama's proposed changes to how the NSA can use its collection of American phone records. While many of Obama's suggestions will take months to implement, if they go into effect at all, Director of National Intelligence James Clapper wrote yesterday that the court had agreed to two immediate limits. Except in cases of "true emergency," every use of the database — which includes metadata like calling history for virtually all American phone numbers — will now have to be approved beforehand by the FISA court on the basis of a reasonable, articulable suspicion that the search criteria is tied to a known terrorist organization. While agents could previously search within three connections of "hops" of a number, they're now limited to two hops.
These changes were the most obvious and immediate proposals in Obama's speech, much of which was devoted to plans that either relied on Congressional action or would require a long period of examination by intelligence agencies. Unfortunately, because the court's decisions are secret, we can't actually see the text of the motion it approved. It did, however, order the government to determine whether that motion can be released to the public, along with the original order covering these metadata searches and the amended version. That review will be finished by February 17th, and whatever is released will be posted online.
Searching the database will require court approval
In the long term, the metadata collection itself is supposed to move out of the NSA's purview. Intelligence agencies are currently examining how they could keep quick access to phone records while addressing concerns about a government agency maintaining a centralized database; possible approaches include giving the records to a private third party or asking phone companies to store information for longer. On February 5th, the Office of the Director of National Intelligence put out a public request for information, asking companies for input that could be integrated into the final proposal.
Among other things, the request asks for information on achieving "near real-time access" to data from multiple phone companies, provide secure storage, and correlate records from different companies into a single searchable database. It also asks for input in creating "rigorous" standards for making sure agents can't make unauthorized searches "while maintaining 99.9 percent availability." The database has been described as an important tool to maintain national security, but intelligence agencies have failed to point to significant leads it generated, instead insisting that it lets them confirm a particular terrorist group is not operating on American soil. Suggestions for overhauling it will need to be in by March 28th, when the NSA will renew its requests for information from telephone providers.