If approved by Congress, the legislation would keep phone records in the hands of phone companies and not with the NSA.
Lance WhitneyContributing Writer
Lance Whitney is a freelance technology writer and trainer and a former IT professional. He's written for Time, CNET, PCMag, and several other publications. He's the author of two tech books--one on Windows and another on LinkedIn.
President Obama has called for an end to the NSA's bulk collection of the phone records of American citizens.
In a statement released on Thursday, the president outlined a new plan that would see the phone companies hold onto the records of their customers. The National Security Agency and other government agencies would then require a court order from the Foreign Intelligence Surveillance Court (FISC) to access specific records.
The government will not collect these telephone records in bulk; rather, the records would remain at the telephone companies for the length of time they currently do today.
Absent an emergency situation, the government would obtain the records only pursuant to individual orders from the FISC approving the use of specific numbers for such queries, if a judge agrees based on national security concerns.
The records provided to the government in response to queries would only be within two hops of the selection term being used, and the government's handling of any records it acquires will be governed by minimization procedures approved by the FISC.
The court-approved numbers could be used to query the data over a limited period of time without returning to the FISC for approval, and the production of records would be ongoing and prospective.
The companies would be compelled by court order to provide technical assistance to ensure that the records can be queried and that results are transmitted to the government in a usable format and in a timely manner.
Obama's proposal would end the Patriot Act's Section 215 bulk telephony metadata program. Details of that program and other NSA surveillance activities came to light after former NSA contractor Edward Snowden leaked a series of confidential documents. The resulting outcry among American citizens, privacy advocates, and many politicians in both parties forced Obama to direct the intelligence community and the Attorney General to come up with other options.
The next step is up to Congress, which must pass legislation for the new proposal to go into effect. That legislation certainly won't be in place by March 28, the date which the current data collection program is due to be reauthorized. As such, Obama has asked the Justice Department for a 90-day reauthorization of the existing program but with the following modifications proposed in January:
"Absent an emergency situation, the government can query the telephony metadata collected pursuant to the program only after a judge approves the use of specific numbers for such queries based on national security concerns; and the results of any query are limited to metadata within two hops of the selection term being used, instead of three."
Obama's full proposal is described in the statement below (which is followed here by comment from the American Civil Liberties Union):
"Earlier this year in a speech at the Department of Justice, I announced a transition that would end the Section 215 bulk telephony metadata program as it previously existed and that we would establish a mechanism to preserve the capabilities we need without the government holding this bulk metadata. I did so to give the public greater confidence that their privacy is appropriately protected, while maintaining the tools our intelligence and law enforcement agencies need to keep us safe.
In that January 17 speech, I ordered that a transition away from the prior program would proceed in two steps. In addition to directing immediate changes to the program, I also directed the Intelligence Community and the Attorney General to use this transition period to develop options for a new approach to match the capabilities and fill gaps that the Section 215 program was designed to address without the government holding this metadata. I instructed them to report back to me with options for alternative approaches before the program comes up for reauthorization on March 28th. As part of this process, we consulted with the Congress, the private sector, and privacy and civil liberties groups, and developed a number of alternative approaches.
Having carefully considered the available options, I have decided that the best path forward is that the government should not collect or hold this data in bulk. Instead, the data should remain at the telephone companies for the length of time it currently does today. The government would obtain the data pursuant to individual orders from the Foreign Intelligence Surveillance Court (FISC) approving the use of specific numbers for such queries, if a judge agrees based on national security concerns. Legislation will be needed to permit the government to obtain this information with the speed and in the manner that will be required to make this approach workable.
I believe this approach will best ensure that we have the information we need to meet our intelligence needs while enhancing public confidence in the manner in which the information is collected and held. My team has been in touch with key Congressional leadership -- including from the Judiciary and Intelligence Committees -- and we are committed to working with them to see legislation passed as soon as possible. Given that this legislation will not be in place by March 28 and given the importance of maintaining this capability, I have directed the Department of Justice to seek a 90-day reauthorization of the existing program including the modifications I directed in January. I am confident that this approach can provide our intelligence and law enforcement professionals the information they need to keep us safe while addressing the legitimate privacy concerns that have been raised."
ACLU Director Anthony D. Romero issued a statement later Thursday in reaction to Obama's move.
"The president's plan is a major step in the right direction and a victory for privacy," Romero said. "But this must be the beginning of surveillance reform, not the end. It is gratifying to know that the president has heard the growing bipartisan opposition to the NSA'S mass collection of phone records, and will heed the advice of his own review panel. However, today's announcement leaves in place other surveillance programs with equally troubling implications for civil liberties. Comprehensive reform should begin with passage of the USA Freedom Act, a bill that safeguards privacy while also ensuring that the government has the tools it needs to investigate real threats. We must restore the proper balance between security and our constitutional rights."
Update, 10:41 a.m. PT:Adds reaction from the ACLU.