Key NSA Defender Wants to End Bulk Data Collection

Dutch Ruppersberger has a plan to overhaul the controversial spying program.

Rep. "Dutch" Ruppersberger interview
National Journal
Brendan Sasso
March 13, 2014, 7:41 a.m.

One of the top sup­port­ers of the Na­tion­al Se­cur­ity Agency is now call­ing for an end to the agency’s con­tro­ver­sial prac­tice of col­lect­ing data on mil­lions of U.S. phone calls.

Un­der the pro­pos­al from Rep. Dutch Rup­pers­ber­ger, the top Demo­crat on the House In­tel­li­gence Com­mit­tee, the phone com­pan­ies, not the NSA, would hold the phone data. NSA ana­lysts could ac­cess the re­cords only if they first ob­tain an or­der from the For­eign In­tel­li­gence Sur­veil­lance Court.

His pro­pos­al would not im­pose any man­date on the phone com­pan­ies to main­tain the data — an idea that would face fierce res­ist­ance from civil-liber­ties groups and the phone com­pan­ies them­selves.

In an in­ter­view with Na­tion­al Journ­al, Rup­pers­ber­ger ar­gued that a new data-re­ten­tion man­date is un­ne­ces­sary be­cause the Fed­er­al Com­mu­nic­a­tions Com­mis­sion already re­quires phone com­pan­ies to main­tain their re­cords for 18 months in case there are dis­putes over billing.

Most NSA searches in­volve phone calls that are less than 18 months old, ac­cord­ing to Rup­pers­ber­ger.

The pro­pos­al is a shift for the Demo­crat­ic law­maker, who is one of the most vo­cal de­fend­ers of the NSA on Cap­it­ol Hill.

“I rep­res­ent NSA,” said Rup­pers­ber­ger, whose dis­trict in­cludes NSA’s headquar­ters in Fort Meade, Md. “NSA and the people who work there do an ex­cel­lent job.”

But he ac­know­ledged that in the wake of the leaks by Ed­ward Snowden, there is now a wide­spread view that the agency is in­vad­ing people’s pri­vacy.

“We’ve got to find a way to get the con­fid­ence of the Amer­ic­an people back so they will re­spect NSA as much as they re­spect the mil­it­ary,” he said.

He ar­gued that his plan would bol­ster pri­vacy pro­tec­tions while main­tain­ing the NSA’s abil­ity to un­cov­er ter­ror­ist plots.

Rup­pers­ber­ger pro­pos­al is in line with Pres­id­ent Obama’s goal of giv­ing up NSA con­trol of the phone data­base while main­tain­ing the pro­gram’s cap­ab­il­ity. The ad­min­is­tra­tion is cur­rently re­view­ing sev­er­al op­tions for over­haul­ing the pro­gram, in­clud­ing hav­ing phone com­pan­ies hold the data and giv­ing the data to a third-party group.

The White House is ex­pec­ted to an­nounce its plan for the pro­gram be­fore March 28.

But Rup­pers­ber­ger warned that no mat­ter what plan the White House comes up with, the pro­gram could ex­pire next year when the For­eign In­tel­li­gence Sur­veil­lance Act is up for re­new­al.

He said he is work­ing with House In­tel­li­gence Com­mit­tee Chair­man Mike Ro­gers on le­gis­la­tion that would re­vamp and ex­tend the law.

“I’m not sure wheth­er we could get the votes to pass an­oth­er FISA bill,” Rup­pers­ber­ger said. “Mike and I real­ize we have to make a change.”

But he ac­know­ledged that the House In­tel­li­gence chair­man is not on board yet with his pro­pos­al to lim­it the NSA phone sweeps.

In an emailed state­ment, Ro­gers said he con­tin­ues to work with Rup­pers­ber­ger and oth­er law­makers “to craft a pro­pos­al that will ad­dress the con­cerns around bulk data stor­age, pro­tect civil liber­ties, in­crease trans­par­ency and con­fid­ence in the gov­ern­ment’s in­tel­li­gence-col­lec­tion activ­it­ies, and main­tain a tar­geted cap­ab­il­ity for coun­terter­ror­ism op­er­a­tions.”

Caitlin Hay­den, a White House spokes­per­son, said the pres­id­ent hasn’t de­cided yet on his plan for the pro­gram. 

Rup­pers­ber­ger’s pro­pos­al would not strengthen the stand­ard NSA ana­lysts need to meet be­fore re­view­ing phone re­cords. Cur­rently, the NSA col­lects mil­lions of re­cords, but only ac­cesses the data­base if there is a “reas­on­able, ar­tic­ul­able sus­pi­cion” that a phone num­ber is con­nec­ted to ter­ror­ism.

Un­der the USA Free­dom Act, a tough­er bill from GOP Rep. Jim Sensen­bren­ner and Demo­crat­ic Sen. Patrick Leahy, the NSA would need to show that a re­cord is rel­ev­ant to a ter­ror­ism in­vest­ig­a­tion and per­tains to an agent of a “for­eign power.”

But Rup­pers­ber­ger ar­gued that the USA Free­dom Act’s stand­ard is too re­strict­ive.

“In my opin­ion that would put our coun­try at risk,” he said. The Mary­land Demo­crat ar­gued that in­tel­li­gence agents are try­ing to thwart ter­ror­ist at­tacks and they shouldn’t be held to the same stand­ard as po­lice or pro­sec­utors try­ing to ob­tain evid­ence for a tri­al after the crime has already been com­mit­ted.

In a state­ment, Sensen­bren­ner ap­plauded Rup­pers­ber­ger for agree­ing that bulk data col­lec­tion should end and urged him to sign on to the USA Free­dom Act. 

“It strikes the prop­er bal­ance between se­cur­ity and pri­vacy, and I am con­fid­ent it has the votes to pass,” Sensen­bren­ner said. 

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