White House and Congress propose different ends to bulk NSA phone data collection

Giuseppe Macri Tech Editor
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White House and legislative proposals to end the National Security Agency’s bulk collection and retention of phone records are circulating, but none of them go far enough, according to some civil libertarians.

On Tuesday, the House Intelligence Committee introduced the “End Bulk Collection Act of 2014,” which would prevent the NSA from forcing telecommunications service providers like AT&T and Verizon to store customer data in bulk. If enacted, the bill would also force the agency to meet certain criteria for data requests.

The loose nature of that criteria, however, could end up making it easier for the NSA to monitor phone data, according to some who have seen an early draft of the bill, including the Guardian’s Spencer Ackerman.

“The bill would allow the government to collect electronic communications records based on “reasonable articulable suspicion,” rather than probable cause or relevance to a terrorism investigation, from someone deemed to be an agent of a foreign power, associated with an agent of a foreign power, or ‘in contact with, or known to, a suspected agent of a foreign power,'” Ackerman said.

With support from Michigan Republican representative and Intelligence Committee Chairman Michael Rogers and Maryland Democratic Rep. Dutch Ruppersberger, the bill would require a yearly general sign-off by the Foreign Intelligence Surveillance Court. However, the NSA would be able to issue subpoenas for individual records on its own and without prior judicial approval.

After the yearly FISA approval, the NSA would only have to seek permission from the U.S. Attorney General and the Director of National Intelligence. In short, the bill ends bulk collection while simultaneously streamlining the signals intelligence agency’s acquisition of specific customer metadata.

A Tuesday New York Times report citing “senior White House officials” said the administration is preparing its own legislation outlining a “far-reaching overhaul” of NSA bulk records collection that could be unveiled within 90 days of the current program’s expiration date.

The Obama administration’s proposal also ends the agency’s mandate forcing companies to store bulk phone records for five years, and does not require them to be saved any longer than normal. In contrast to the House bill, the White House legislation would require the NSA to get a new type of court order permission from a judge in order to obtain specific individual customer phone records.

“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 Times report explains. “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.”

“We have many questions about the details, but we agree with the administration that the NSA’s bulk collection of call records should end.” the American Civil Liberties Union’s Jameel Jaffer said. “As we’ve argued since the program was disclosed, the government can track suspected terrorists without placing millions of people under permanent surveillance.”

Both proposals drastically alter the current interpretation of Section 215 of the PATRIOT Act, which in its original form was intended to establish links to hidden terrorist associates from the call data of suspected terrorists. The last two administrations have broadly interpreted it as allowing for the bulk collection of domestic phone records due to their potential use in an investigation.

But outspoken NSA surveillance critic (and PATRIOT Act co-author) Republican Rep. Jim Sensenbrenner says Tuesday’s proposal is not enough, and would not end bulk collection.

“Congress must pass a straightforward bill to address NSA overreach. The End Bulk Collection Act is a convoluted bill that accepts the administration’s deliberate misinterpretation of the law. It limits, but does not end, bulk collection,” Sensenbrenner said in a statement Monday.

“Provisions included in the draft fall well short of the safeguards in the USA FREEDOM Act and do not strike the proper balance between privacy and security. The End Bulk Collection Act will not have my support.”

Sensenbrenner’s USA FREEDOM Act, which he drafted with Vermont Democrat and Senate Judiciary Chairman Patrick Leahy, would end bulk collection and prevent the NSA from searching for American citizens’ identifying information in its foreign communications databases. It is now co-sponsored by 163 representatives in both chambers.

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