Obama to Call for End to N.S.A.’s Bulk Data Collection
WASHINGTON — The Obama administration is preparing to unveil a legislative proposal for a far-reaching overhaul of the National Security Agency’s
once-secret bulk phone records program in a way that — if approved by
Congress — would end the aspect that has most alarmed privacy advocates
since its existence was leaked last year, according to senior
administration officials.
Under
the proposal, they said, the N.S.A. would end its systematic collection
of data about Americans’ calling habits. The bulk records would stay in
the hands of phone companies, which would not be required to retain the
data for any longer than they normally would. And the N.S.A. could
obtain specific records only with permission from a judge, using a new
kind of court order.
In a speech in January, President Obama
said he wanted to get the N.S.A. out of the business of collecting call
records in bulk while preserving the program’s abilities. He
acknowledged, however, that there was no easy way to do so, and had
instructed Justice Department and intelligence officials to come up with
a plan by March 28 — Friday — when the current court order authorizing
the program expires.
As
part of the proposal, the administration has decided to ask the Foreign
Intelligence Surveillance Court to renew the program as it exists for
at least one more 90-day cycle, senior administration officials said.
But under the plan the administration has developed and now advocates,
the officials said, it would later undergo major changes.
The
new type of surveillance court orders envisioned by the administration
would require phone companies to swiftly provide records in a
technologically compatible data format, including making available, on a
continuing basis, data about any new calls placed or received after the
order is received, the officials said.
They
would also allow the government to swiftly seek related records for
callers up to two phone calls, or “hops,” removed from the number that
has come under suspicion, even if those callers are customers of other
companies.
The
N.S.A. now retains the phone data for five years. But the
administration considered and rejected imposing a mandate on phone
companies that they hold on to their customers’ calling records for a
period longer than the 18 months that federal regulations already
generally require — a burden that the companies had resisted shouldering
and that was seen as a major obstacle to keeping the data in their
hands. A senior administration official said that intelligence agencies
had concluded that the operational impact of that change would be small
because older data is less important.
The N.S.A. uses the once-secret call records program — sometimes known as the 215 program, after Section 215 of the Patriot Act
— to analyze links between callers in an effort to identify hidden
terrorist associates, if they exist. It was part of the secret
surveillance program that President George W. Bush unilaterally put in
place after the terrorist attacks of Sept. 11, 2001, outside of any
legal framework or court oversight.
In
2006, as part of a broader Bush administration effort to put its
programs on a firmer legal footing, the Justice Department persuaded the
surveillance court to begin authorizing the program. It claimed that
Section 215, which allows the F.B.I. to obtain court orders for business
records deemed “relevant” to an investigation, could be interpreted as
allowing the N.S.A. to systematically collect domestic calling records
in bulk.
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Marc
Rotenberg, the executive director of the Electronic Privacy Information
Center, called the administration’s proposal a “sensible outcome, given
that the 215 program likely exceeded current legal authority and has
not proved to be effective.” While he said that he would like to see
more overhauls to other surveillance authorities, he said the proposal
was “significant” and addressed the major concerns with the N.S.A.’s
bulk records program.
Jameel
Jaffer of the American Civil Liberties Union said, “We have many
questions about the details, but we agree with the administration that
the N.S.A.’s bulk collection of call records should end.” He added, “As
we’ve argued since the program was disclosed, the government can track
suspected terrorists without placing millions of people under permanent
surveillance.”
The
administration’s proposal will join a jumble of bills in Congress
ranging from proposals that would authorize the current program with
only minor adjustments, to proposals to end it.
In
recent days, attention in Congress has shifted to legislation developed
by leaders of the House Intelligence Committee. That bill, according to
people familiar with a draft proposal, would have the court issue an
overarching order authorizing the program, but allow the N.S.A. to issue
subpoenas for specific phone records without prior judicial approval.
The
Obama administration proposal, by contrast, would retain a judicial
role in determining whether the standard of suspicion was met for a
particular phone number before the N.S.A. could obtain associated
records.
The
administration’s proposal would also include a provision clarifying
whether Section 215 of the Patriot Act, due to expire next year unless
Congress reauthorizes it, may in the future be legitimately interpreted
as allowing bulk data collection of telephone data.
The proposal would not, however, affect other forms of bulk collection under the same provision. The C.I.A., for example, has obtained orders for bulk collection of records about international money transfers handled by companies like Western Union.
The
existence of the N.S.A. program was disclosed and then declassified
last year following leaks by Edward J. Snowden, the former N.S.A.
contractor. The disclosure set off a controversy that scrambled the
usual partisan lines in Congress.
The
government has been unable to point to any thwarted terrorist attacks
that would have been carried out if the program had not existed, but has
argued that it is a useful tool.
A review group appointed by Mr. Obama and an independent federal privacy watchdog
both called for major changes to the program; the latter also concluded
that the bulk collection is illegal, rejecting the government’s Patriot
Act interpretation.
In
January, Mr. Obama narrowed how far out from suspects N.S.A. analysts
could go in analyzing calling records, reducing the limit to two steps
from three. He also began requiring N.S.A. analysts to obtain court
approval before using a phone number to make queries of the database.
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