Obama Team: Help Us Spy On You Better

Spies call for counsel in overhauling NSA program.

US President Barack Obama looks through binoculars towards North Korea from Observation Post Ouellette during a visit to the Joint Security Area of the Demilitarized Zone (DMZ) near Panmunjom on the border between North and South Korea on March 25, 2012. Obama arrived in Seoul earlier in the day to attend the 2012 Seoul Nuclear Security Summit to be held on March 26-27.
National Journal
Brendan Sasso
Feb. 10, 2014, midnight

The Obama ad­min­is­tra­tion is spit­balling ideas for sur­veil­lance re­form

Pres­id­ent Obama has giv­en his ad­visers a seem­ingly im­possible chal­lenge, and with the dead­line fast ap­proach­ing, they’re now turn­ing to the private sec­tor for help.

In a speech last month out­lining changes to the con­tro­ver­sial sur­veil­lance pro­grams, Obama said he wants the Na­tion­al Se­cur­ity Agency to con­tin­ue min­ing through phone re­cords for pos­sible ter­ror­ists, but he doesn’t want the gov­ern­ment to hold the call data any­more.

No one is really sure how the gov­ern­ment can achieve both goals, but Obama gave At­tor­ney Gen­er­al Eric Hold­er and top in­tel­li­gence of­fi­cials un­til March 28 to fig­ure it out.

Last week, the Of­fice of the Dir­ect­or of Na­tion­al In­tel­li­gence pub­lished a re­quest for in­dustry in­put on the prob­lem. The agency said it wants to in­vest­ig­ate wheth­er “ex­ist­ing com­mer­cially avail­able cap­ab­il­it­ies can provide a new ap­proach” to the bulk col­lec­tion of phone re­cords.

The no­tice says the gov­ern­ment is look­ing for a way for an out­side group to store a “large quant­ity of data” with “near real-time ac­cess” to the re­cords of vari­ous pro­viders. The gov­ern­ment should only be able to ac­cess the data with prop­er au­thor­iz­a­tion, but the data must be avail­able with 99.9% re­li­ab­il­ity. The agency said the data­base must also meet “rig­or­ous se­cur­ity and audit­ab­il­ity stand­ards.” In­ter­ested com­pan­ies are sup­posed to sub­mit their ideas as two-page pro­pos­als.

The Obama ad­min­is­tra­tion will also hear in­put from pri­vacy ad­voc­ates on the is­sue on Tues­day. Rep­res­ent­at­ives from the Cen­ter for Demo­cracy and Tech­no­logy, the Amer­ic­an Civil Liber­ties Uni­on, and the Open Tech­no­logy In­sti­tute plan to meet with in­tel­li­gence of­fi­cials to push for stronger pri­vacy pro­tec­tions in the up­dated pro­gram.

The ex­ist­ence of the NSA’s phone data­base was one of the most con­tro­ver­sial rev­el­a­tions from the leaks by Ed­ward Snowden. The data­base in­cludes re­cords such as phone num­bers, call times, and call dur­a­tions for mil­lions of Amer­ic­ans not sus­pec­ted of any wrong­do­ing.

In his speech, Obama iden­ti­fied two pos­sible al­tern­at­ives to gov­ern­ment con­trol of the data­base, but he ad­mit­ted that both are prob­lem­at­ic. The tele­com com­pan­ies could main­tain the data them­selves, but the gov­ern­ment would likely want to im­pose man­dates for how the com­pan­ies handle and re­tain the re­cords. The phone com­pan­ies have no in­terest in a new reg­u­lat­ory re­gime for data man­age­ment, and pri­vacy ad­voc­ates fear the pro­pos­al would turn the com­pan­ies in­to agents of the NSA.

An­oth­er path would be to cre­ate a sep­ar­ate third-party to man­age the re­cords and give the NSA ac­cess, but Obama ex­pressed con­cern that the new en­tity would “be car­ry­ing out what is es­sen­tially a gov­ern­ment func­tion but with more ex­pense, more leg­al am­bi­gu­ity, po­ten­tially less ac­count­ab­il­ity.”

Obama, however, said it may be pos­sible to “pre­serve the cap­ab­il­it­ies we need through a com­bin­a­tion of ex­ist­ing au­thor­it­ies, bet­ter in­form­a­tion shar­ing, and re­cent tech­no­lo­gic­al ad­vances.”

“But more work needs to be done to de­term­ine ex­actly how this sys­tem might work,” he ac­know­ledged.

March 28 is not an ar­bit­rary soft dead­line that can be pushed back. It’s the day that the gov­ern­ment’s cur­rent per­mis­sion from the For­eign In­tel­li­gence Sur­veil­lance Court to op­er­ate the pro­gram ex­pires. If the Justice De­part­ment can’t present a new plan to the court by that day, it would have to ask to con­tin­ue the pro­gram as it cur­rently ex­ists — which would be a ma­jor hu­mi­li­ation after the pres­id­ent prom­ised sub­stant­ive re­forms.

Michelle Richard­son, an ACLU lob­by­ist who plans to at­tend Tues­day’s meet­ing with in­tel­li­gence of­fi­cials, said she’s not sure what tech­no­lo­gic­al solu­tions could al­low the NSA to mine through a data­base it doesn’t con­trol. But she said the ad­min­is­tra­tion should give up on the pro­gram and rely on oth­er au­thor­it­ies to ac­cess the phone re­cords of sus­pec­ted ter­ror­ists.

“This pro­gram doesn’t work, and it col­lects too much in­form­a­tion,” she said. “Re­turn to oth­er tools to get phone re­cords — there’s a mil­lion ways you can get phone re­cords.”

Richard­son ad­ded that she is “still steam­ing” over news re­ports Fri­day that the NSA is in fact col­lect­ing less than 30 per­cent of all phone re­cords.

“Really, they’re go­ing to the mat­tresses over a phone pro­gram that doesn’t even get cell­phones? What is wrong with these people?” she said. “I’m be­gin­ning to fully be­lieve that it’s just a prin­cipled fight over ‘you can’t tell us what to do.’”

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