Despite Obama’s Pledge to Curb It, NSA Mass Surveillance Wins Rubber Stamp

Mass surveillance just earned another 90-day blank check, nine months after President Obama promised to rein in the NSA’s spying powers.

A sign stands outside the National Security Administration (NSA) campus in Fort Meade, Md., Thursday, June 6, 2013.
National Journal
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Dustin Volz
Sept. 13, 2014, 5:50 a.m.

In the face of con­gres­sion­al in­ac­tion, a fed­er­al court Fri­day re­newed an or­der al­low­ing the gov­ern­ment to col­lect phone re­cords on vir­tu­ally all calls with­in the United States.

The For­eign In­tel­li­gence Sur­veil­lance Court ap­proved the Justice De­part­ment’s re­quest for an­oth­er 90-day ex­ten­sion of the Na­tion­al Se­cur­ity Agency’s con­tro­ver­sial mass-sur­veil­lance pro­gram, ex­posed pub­licly last sum­mer by Ed­ward Snowden and au­thor­ized un­der Sec­tion 215 of the post-9/11 Pat­ri­ot Act. The spy­ing au­thor­ity is next set to ex­pire on Dec. 5.

“Giv­en that le­gis­la­tion has not yet been en­acted, and giv­en the im­port­ance of main­tain­ing the cap­ab­il­it­ies of the Sec­tion 215 tele­phony metadata pro­gram, the gov­ern­ment has sought a 90-day reau­thor­iz­a­tion of the ex­ist­ing pro­gram, as mod­i­fied by the changes the pres­id­ent an­nounced in Janu­ary,” the Justice De­part­ment and Of­fice of the Dir­ect­or of Na­tion­al In­tel­li­gence said in a joint state­ment.

The ex­ten­sion marks the third of its kind since Pres­id­ent Obama pledged in Janu­ary to re­form how the NSA spies on Amer­ic­ans dur­ing a ma­jor policy speech de­livered amid with­er­ing scru­tiny of the na­tion’s in­tel­li­gence-gath­er­ing prac­tices. Obama out­lined a series of im­me­di­ate steps to re­form gov­ern­ment sur­veil­lance and boost trans­par­ency, but noted he would wait for Con­gress to de­liv­er him a bill be­fore end­ing the bulk col­lec­tion of U.S. call data.

At the time, Obama said he had asked At­tor­ney Gen­er­al Eric Hold­er and the in­tel­li­gence com­munity to de­vise “op­tions for a new ap­proach” for phone-re­cords sur­veil­lance “be­fore the pro­gram comes up for reau­thor­iz­a­tion on March 28.” The pres­id­ent ad­ded that “dur­ing this peri­od, I will con­sult with the rel­ev­ant com­mit­tees in Con­gress to seek their views and then seek con­gres­sion­al au­thor­iz­a­tion for the new pro­gram, as needed.”

But at­tempts at NSA re­form on Cap­it­ol Hill this year have been slow go­ing. And in the ab­sence of le­gis­la­tion, the courts have now re­newed the col­lec­tion of tele­phone metadata—the num­bers and time stamps of calls but not their ac­tu­al con­tents—in March, June, and now Septem­ber.

Re­pub­lic­ans have claimed throughout the year that Obama has over­stepped the con­sti­tu­tion­al bounds of his of­fice, a charge that has even brought a law­suit from the House of Rep­res­ent­at­ives. But NSA crit­ics have urged Obama to not wait for Con­gress and simply let the phone-re­cords pro­gram lapse. In June, more than two dozen pri­vacy groups sent the pres­id­ent a let­ter ask­ing him to not re­new the pro­gram, a de­cision they said was “solely with­in the au­thor­ity of the De­part­ment of Justice.”

In Ju­ly, Sen­ate Ju­di­ciary Com­mit­tee Chair­man Patrick Leahy in­tro­duced the USA Free­dom Act, which would ef­fect­ively end the gov­ern­ment’s col­lec­tion and stor­age of phone metadata and in­stead re­quire phone com­pan­ies to re­tain those re­cords, which in­tel­li­gence agen­cies could ob­tain only after earn­ing court ap­prov­al for their quer­ies. The meas­ure is a more am­bi­tious pro­pos­al of a ver­sion of the bill that passed the House in May, and it has ac­crued sup­port from tech com­pan­ies, pri­vacy groups, the ad­min­is­tra­tion, and Dir­ect­or of Na­tion­al In­tel­li­gence James Clap­per.

“Con­gress must en­sure that this is the last time the gov­ern­ment re­quests and the court ap­proves the bulk col­lec­tion of Amer­ic­ans’ re­cords,” Leahy said in a state­ment. “This an­nounce­ment un­der­scores, once again, that it is time for Con­gress to en­act mean­ing­ful re­forms to pro­tect in­di­vidu­al pri­vacy.”

In their joint state­ment, the Justice De­part­ment and Of­fice of the Dir­ect­or of Na­tion­al In­tel­li­gence en­dorsed the House ver­sion of the USA Free­dom Act, not­ing that “it re­flects a reas­on­able com­prom­ise that pre­serves es­sen­tial in­tel­li­gence com­munity cap­ab­il­it­ies, en­hances pri­vacy and civil liber­ties, and in­creases trans­par­ency.” The state­ment did not dir­ectly com­ment on Leahy’s pack­age.

Des­pite the wide breadth of sup­port for the Free­dom Act, the bill is un­likely to earn a vote in the Sen­ate be­fore the midterm elec­tions, and it could be tabled un­til next year.