Late Monday night, the New York Times, the Wall Street Journal, and the Guardian each reported on what will inevitably be new competing efforts to reform the NSA’s bulk telephony metadata surveillance program.
The first reform, backed by President Obama and the White House, will reportedly end bulk telephony metadata collection. Under the new proposal, the NSA will have to get a court order each time it wants to query a phone number, and it must demonstrate that the number has a probable connection to terrorist activity. The proposal would further limit the amount of information that could be caught up in a single search – when the program was revealed, the NSA was able to query for data up to three “hops” away from the target. The current proposal will limit this to only two hops.
“While we still believe that in most cases two hops is too many, the White House’s proposal is a significant step forward and if passed will bring the NSA much closer to the “one warrant, one user” standard that Access has long advocated,” said Senior Policy Counsel Amie Stepanovich.
A second legislative proposal will be released tomorrow, sponsored by Representatives Rogers (D-Mich) and Ruppersberger (D-MD). The Guardian, which received an advanced copy of the bill, explains that it will also end the government’s bulk collection of “records of electronic communications,” though will allow the NSA to unilaterally order providers to turn over that information to the government, so long as it follows up with a notice to the Foreign Intelligence Surveillance Court.
The Journal reports that the bill will include both landline records as well as cell phone records, the former are largely not collected by the program in its current form. A telecommunications executive interviewed by the Journal explained, “the bill wouldn’t require them to retain data longer than they already do.” Unlike the White House’s proposal, Rogers and Ruppersberger’s bill contains no requirement that a number targeted demonstrate any connection between the target number and suspected terrorist activity.
Both proposals would allow the government to also obtain information on calls placed even after the order is entered. Neither bill provides for notice to the target of the surveillance, or a chance for that target to challenge the collection. It is unclear the extent to which either bill would have any impact on bulk collection of other types of data, including a large amount of internet metadata, location information, or biometric information. Finally, neither bill would reform many of the other problems with other NSA surveillance programs, including programs that allow the NSA to indiscriminately acquire vast amounts of data from points overseas.
Stepanovich emphasizes, “The devil is in the details. However, it is abundantly clear that bulk, indiscriminate collection of information on individuals must end now, and cannot be allowed to re-start at the will of the government. We applaud the White House proposals for moving us in that direction. However, it doesn’t go far enough to protect individual rights, including of those outside of the United States. However, the House bill takes a step backward: it codifies some of the NSA’s unlawful practices.”
Access has voiced support for a third proposal – the USA FREEDOM Act, introduced last year by Representative Sensenbrenner, who was also one of the main architects of 2001’s USA PATRIOT Act. The bill would prevent the government from conducting any bulk surveillance program and would require a request for phone records to relate to an ongoing investigation. Section 215 of the USA PATRIOT Act, which currently authorizes the program, requires that business records sought be “relevant to an authorized investigation.” The government has argued, and the FISA Court has agreed, that this language does not require any showing of a connection to a particular suspect, and therefore allows the collection of all phone records from any specified provider.
“The USA FREEDOM Act contains more far-reaching reform proposals, stretching beyond Section 215 and telephone metadata to offer additional meaningful reforms,” said Stepanovich. “We are also heartened by the U.S. State Department’s statement earlier this month at RightsCon providing support for many of the International Principles on the Application of Human Rights to Communications Surveillance. That said, these competing proposals show this national conversation on surveillance reform still has a long way to go.”
The bulk telephony metadata collection program was revealed in June 2013 by the Guardian, based on documents provided by Edward Snowden. The program has provoked several lawsuits against the National Security Agency, including one in the District of Columbia in which a federal judge issued a ruling stating that the program was likely unconstitutional.
Access will provide deeper analysis, including of the full drafts of the proposals, as more information becomes available.