Obama and Lawmakers Plan to End Mass Surveillance

The White House and the House Intelligence Committee plan to soon unveil their proposals to reform NSA spying.

The National Security Agency (NSA) headquarters at Fort Meade, Maryland, as seen from the air, January 29, 2010. 
National Journal
Brendan Sasso
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Brendan Sasso
March 25, 2014, 2:44 a.m.

Some of the fiercest de­fend­ers of the Na­tion­al Se­cur­ity Agency now want to end the agency’s con­tro­ver­sial prac­tice of col­lect­ing re­cords on mil­lions of U.S. phone calls.

Rep. Mike Ro­gers, the Re­pub­lic­an chair­man of the House In­tel­li­gence Com­mit­tee, and Rep. Dutch Rup­pers­ber­ger, the pan­el’s top Demo­crat, un­veiled their le­gis­la­tion on Tues­day morn­ing, and Pres­id­ent Obama is pre­par­ing to an­nounce his own plan this week.

The pro­pos­als mark a dra­mat­ic shift from last year, when the ad­min­is­tra­tion and the In­tel­li­gence Com­mit­tee lead­ers ar­gued that it was vi­tal to na­tion­al se­cur­ity that bulk data col­lec­tion con­tin­ue. But the pub­lic out­cry and de­mand for stronger pri­vacy pro­tec­tion forced the of­fi­cials to agree to modi­fy the con­tro­ver­sial pro­gram.

Un­der Obama’s pro­pos­al, the vast data­base of phone re­cords would stay in the hands of the phone com­pan­ies, The New York Times re­por­ted late Monday. To ac­cess data on a par­tic­u­lar tar­get, the NSA would have to first ob­tain an or­der from the For­eign In­tel­li­gence Sur­veil­lance Court. The plan would al­low for a new kind of court or­der that would force the com­pan­ies to provide the phone re­cords on a con­tinu­ing basis, in­clud­ing new calls placed after the or­der was is­sued, ac­cord­ing to the re­port.

But Obama’s pro­pos­al would not im­pose any new man­date on the phone com­pan­ies to re­tain the data, ac­cord­ing to the re­port. Phone com­pan­ies would battle any at­tempt to force them to hold on to data longer than they already do. Un­der fed­er­al reg­u­la­tions, they already must hold re­cords for 18 months for billing pur­poses.

Caitlin Hay­den, a White House spokes­wo­man, con­firmed that in the com­ing days, the pres­id­ent “will put for­ward a sound ap­proach to en­sur­ing the gov­ern­ment no longer col­lects or holds this data, but still en­sures that the gov­ern­ment has ac­cess to the in­form­a­tion it needs to meet the na­tion­al se­cur­ity needs his team has iden­ti­fied.”

But the pro­pos­al re­quires con­gres­sion­al ap­prov­al, and the ad­min­is­tra­tion’s au­thor­ity from the For­eign In­tel­li­gence Sur­veil­lance Court to col­lect phone data un­der the pro­gram is set to ex­pire on Fri­day. Hay­den said the ad­min­is­tra­tion will ask the court for per­mis­sion to con­tin­ue the pro­gram as it cur­rently ex­ists un­til Con­gress acts.

The White House’s plan is very sim­il­ar to the bill that Ro­gers and Rup­pers­ber­ger, two of the staunchest sup­port­ers of the NSA, put for­ward on Tues­day.

Like the pres­id­ent’s pro­pos­al, the FISA Trans­par­ency and Mod­ern­iz­a­tion Act would shift the phone data­base in­to private hands. But un­like the pres­id­ent’s plan, the bill would re­quire court re­view only after the NSA is­sues the or­ders.

The In­tel­li­gence Com­mit­tee bill would also pro­hib­it the bulk col­lec­tion of oth­er re­cords, such as In­ter­net data, lib­rary re­cords, or med­ic­al data. Obama’s pro­pos­al would only ad­dress the bulk col­lec­tion of phone re­cords.

The House le­gis­la­tion would also re­quire the gov­ern­ment to re­lease more in­form­a­tion about the sur­veil­lance court’s de­cisions.

In a state­ment, the Elec­tron­ic Fron­ti­er Found­a­tion, a pri­vacy ad­vocacy group, said both pro­pos­als would make “seem­ingly sig­ni­fic­ant changes” to NSA spy­ing. The group said it prefers the White House plan be­cause it would im­pose more ju­di­cial re­view on the pro­cess. 

At a press con­fer­ence Tues­day, Ro­gers and Rup­pers­ber­ger said they have been in close con­tact with the White House and their Sen­ate coun­ter­parts and they hope to reach an agree­ment soon.

But their le­gis­la­tion doesn’t go far enough for sup­port­ers of the com­pet­ing USA Free­dom Act, which would raise the stand­ard the NSA would need to meet to ac­cess the data.

Re­pub­lic­an Rep. Jim Sensen­bren­ner, the House au­thor of the USA Free­dom Act, said the In­tel­li­gence Com­mit­tee’s pro­pos­al “is a con­vo­luted bill that ac­cepts the ad­min­is­tra­tion’s de­lib­er­ate mis­in­ter­pret­a­tion of the law.”

But Rup­pers­ber­ger and Ro­gers warned that the USA Free­dom Act would jeop­ard­ize U.S. na­tion­al se­cur­ity.

“In my opin­ion, the Sensen­bren­ner bill makes our coun­try less safe,” Rup­pers­ber­ger said. 

The NSA claims that the bulk data col­lec­tion is au­thor­ized un­der Sec­tion 215 of the USA Pat­ri­ot Act. That pro­vi­sion is set to ex­pire on June 1, 2015. If Con­gress can’t agree on a way to re­form the pro­gram by then, the pro­gram will have to end en­tirely.

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