President Barack Obama has officially announced his plan to reform the National Security Agency's collection of phone records. Under his new proposal, the agency would no longer keep a database holding a large percentage of all American call records. Instead, phone companies like AT&T and Verizon would keep them for the same length of time they do now, and the government would submit requests for individual numbers after getting approval from the Foreign Intelligence Surveillance Court. Phone companies, for their part, would have to provide "technical assistance" in order to make sure that the government could easily search for and collect information, which could include the numbers that had been in communication with a particular subscriber, the duration of calls, and similar information from within two degrees of separation (or "hops") from a target.
The current program will continue for at least 90 days
The current program will continue for at least 90 days, albeit with some limits that were set early this year. In a statement, however, Obama said he was working with Congress in order to pass legislation for his proposal "as soon as possible." A fact sheet describes a few of the program's particulars. Except in cases of emergency, the court would need to approve each number before the government could search for it, using the criteria of "national security concerns." The law that currently enables collecting records limits searches to terrorism or "clandestine intelligence activities" specifically, but it's not clear whether this slightly broader wording will actually make it into the bill. If a number is approved, the government would have a "limited period of time" to search through its records, and it could continue to get new records from the same number as they came in. As always, these numbers cannot belong to American citizens, although data from citizens could be incidentally collected as part of other searches.
Details about Obama's proposal were first released on Monday by The New York Times, and members of Congress have long been debating their own alternatives to the database. Representatives Mike Rogers (R-MI) and C.A. Dutch Ruppersberger (D-MD) announced a draft bill that would keep records in the hands of phone companies, require the FISA court to create a framework for requesting data from them, and then review the validity of requests after the fact. The ACLU and EFF, two organizations that have been central to protest against bulk phone record collection, have both come out against the bill. Critics who have reviewed a draft of the text say it will broaden the range of data collection by allowing operatives to request information about anyone associated with a foreign power — not just people associated with a terrorist or national security investigation — and lift the requirement to get judicial review of every request beforehand. "The bill's modest improvements to the phone records program are not worth demolishing the important judicial role in overseeing these programs," says ACLU counsel Michelle Richardson.
Competing bills are already in Congress
Instead, these organizations support a previous proposal called the USA FREEDOM Act, brought by Senator Patrick Leahy (D-VT) and Representative Jim Sensenbrenner (R-WI). Yet another bill, widely criticized among privacy advocates, was proposed by Senator Diane Feinstein (D-CA) and passed the Intelligence Committee last year. Neither of these bills addresses the concerns of people outside the US, who have complained of overreaching surveillance through this and other programs. The EFF has also critiqued Obama for waiting on legislation instead of issuing an executive order.
The phone record database, first revealed by Edward Snowden in mid-2013, has become a focal point for proponents of surveillance reform. The number of records included is unclear, but the program is under siege from multiple lawsuits, and two Obama review panels have called its efficacy into question. Reports from an ad-hoc panel and the Privacy and Civil Liberties Oversight Board concluded that it had never provided breakthrough clues in a case, and that the benefits it did provide could be gotten through other programs. Intelligence agencies, however, have said that the program provides a way to quickly rule out areas where a plot could be brewing. President Obama ultimately called for the abolition of the program in its current form in January, granting two months to develop an alternative. His proposal comes one day before the March 28th deadline.
Verizon, the subject of Edward Snowden's very first leaked court order, has published a response to Obama's proposal and the bills currently in Congress, asking the government to refrain from making phone companies "create, analyze or retain records" for anything except business purposes.
We applaud these proposals to end Section 215 bulk collection, but feel that it is critical to get the details of this important effort right. So at this early point in the process, we propose this basic principle that should guide the effort: the reformed collection process should not require companies to store data for longer than, or in formats that differ from, what they already do for business purposes. If Verizon receives a valid request for business records, we will respond in a timely way, but companies should not be required to create, analyze or retain records for reasons other than business purposes.
Update: Post has been updated to include Verizon's response to President Obama's statement.