Privacy advocates and other critics of the National Security Agency’s methods of intelligence collection are warily praising the Obama administration’s proposed changes to gathering vast swaths of data, while still insisting that more details and further action is needed.
The White House on Thursday morning issued a new fact sheet describing the steps it would be taking to limit the amount of data the NSA collects in the course of its mission, confirming earlier reports from the New York Times that changes to the surveillance program were on the way.
The administration will be ending the bulk collection of telephonic metadata — the information that describes how long phone calls last and between whom — from wireless carriers. Instead, the records containing this metadata will be left in the hands of the phone companies, and absent an “emergency situation” the government would only gain access to the specific numbers within those records following an order from the Foreign Intelligence Surveillance Court.
In a statement accompanying the release of the new information, President Obama defended the decision to end the bulk collection program despite previously standing firmly behind it. “I believe this approach will best ensure that we have the information we need to meet our intelligence needs while enhancing public confidence in the manner in which the information is collected and held,” Obama said. But that approach is not a done deal. The White House insists that Congress needs to be involved to pass legislation so that once phone companies are the ones storing data, the government can quickly access their records. Until then, the proposal will be unable to fully move forward, the fact sheet reads.
Advocates were quick to point out that there were still several questions left unanswered in the administration’s explanation of its plans. The fact sheet “does not identify the standard that the government must meet to obtain a court order,” the Brennan Center for Justice notes, nor does it point out any limits on the government’s ability to keep and search the records it already has collected. That collection, “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,” the Guardian adds.
Privacy groups issued statements making similar points. “It is gratifying to know that the president has heard the growing bipartisan opposition to the NSA’s mass collection of phone records, and will heed the advice of his own review panel,” Anthony D. Romero, the executive director of the American Civil Liberties Union, said in one. “However, today’s announcement leaves in place other surveillance programs with equally troubling implications for civil liberties.”
Other groups focused on the fact that today’s announcement only applies to what’s known as “Section 215” collections — so named for the provision in the PATRIOT Act authorizing it — and not the global “Section 702” program that is less controversial but far more expansive. “The fact sheet is short on facts and short on reforms,” Zeke Johnson, Director of Amnesty USA’s Security & Human Rights Program, wrote in a statement. “President Obama must do more to respect the right to privacy in the U.S. and around the world.”
There’s also the legislative component to the proposal that has the privacy community concerned. “The executive branch doesn’t need Congress’s permission to end a practice that it never should have started,” the Brennan Center’s Elizabeth Goitein said. “The very fact that the president’s plan requires legislation means he has something in mind other than simply ending the program.”
At present, there are several bills circulating in Congress designed to reform the NSA, from the sweeping USA FREEDOM Act — which many of the privacy groups criticizing the new proposal are backing — to more modest proposals focused on pieces of the problem. Rep. Adam Schiff (D-CA), a senior member of the House Intelligence Committee, who put forward a bill in January designed to take similar action as the President’s newly-announced plans.
In an interview with ThinkProgress, Schiff said that the administration should move forward on ending bulk collection even without Congress acting. “The administration is proposing that the carriers main their data in a uniform format,” Schiff said. “If we were going to compel that, you might need legislation. But assuming we were going to defray the cost of the carriers to make those changes, that’s something that can be negotiated contractually with the carriers in a process that can begin now. So I would encourage the administration to begin the process of transitioning.”
With the glacial pace at which Congress has operated lately, there’s reason to be concerned about the likelihood of any bill passing soon. “Given that this legislation will not be in place by March 28 and given the importance of maintaining this capability, I have directed the Department of Justice to seek a 90-day reauthorization of the existing program,” Obama said in his statement Thursday. Since the revelation of the Section 215 collection program last June, there have been three such 90-day renewals. And in a briefing call this morning, a senior administration official tacitly confirmed that should Congress not act, the renewals of the program in its current state could continue on indefinitely.
“They may need to maintain the bulk collection until they have worked out the technological capability of getting the data directly from the carriers and getting the data to talk to each other,” Schiff acknowledged. But he insisted that there were ways to ensure that phone companies are able to comply with the administration’s goals of having all of them store their data in a uniform format even without legislation. “I met with a private firm that is in the business of doing this and they are confident they can take data even in various formats and harmonize it very quickly. So I think the administration should be taking steps to implement this new model even as it tries to get Congress to make it statutory.”