Nearly ten months after former intelligence contractor Edward Snowden revealed that the National Security Agency was collecting telephone data in bulk, the White House said Thursday that a proposal has been finalized that will put that program to rest.
Following months of debate concerning the United States government’s dragnet collection of raw, basic phone records — the vacuuming of telephony metadata pertaining to millions of Americans on a regular basis — news from the nation’s capital early Thursday indicates that President Barack Obama is prepared to take the next step in drastically altering that previously secret surveillance program.
A fact sheet issued by the administration that morning says the Foreign Intelligence Surveillance Court, or FISC, has approved the White House’s plan to modify the way the American intelligence community interprets Section 215 of the US PATRIOT ACT, which for years has allowed the NSA to sweep up metadata indiscriminately and without obtaining warrants as an implement intended to protect national security. It will need to be authorized by Congress before being codified into law.
Under the White House proposal made public this week, the US government would no longer collect these records in bulk, and instead they would remain in the possession of the telecommunication companies where they originate from for as long as those telecoms currently allow.
Additionally, the NSA would be allowed to search that data from the telecom “only pursuant to individual orders from the FISC approving the use of specific numbers for such queries [and] if a judge agrees based on national security concerns,” the administration’s fact sheet continues, adding for once another layer of oversight to a program that has put the NSA and its operations in the international spotlight since the very first Snowden leak last June.
If approved, the program would also be modified so that the government can only query within two “hops” of a selection term, rather than three as currently interpreted. Hops are the degrees of separation between intelligence targets, and limiting this factor to two means the NSA can query the metadata of an individual if the court approves, and then all of that person’s contacts — and then all of theirs’. A 2011 study found that the average number of degrees of separation between any two people in the world is roughly 4.74.
The White House also says that their proposal, if approved, would allow court-approved numbers to be queried repeatedly without reauthorization for a limited amount of time, and that telecoms “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.” Such a provision suggests that any mechanisms implemented by telecoms or their customers in the future to encrypt or obfuscate metadata, if possible, could be pried apart by the government.
National security reporter Nancy Wheeler reported that Congress will ultimately have to decide what the standard for querying these numbers will be, according to a conference call between the White House and journalists Thursday morning, but the government standard of “reasonable articulable suspicion” would be the starting point.
Still, Wheeler said that she thought the proposal — although an improvement, in her opinion — failed to address all of her concerns, including whether or not the program would be limited to national security concerns beyond counterterrorism, and what kind of protections will secure the data once it is delivered to the NSA.
For now, however, the White House says that their proposal preserves the capabilities the intelligence community need without requiring the government to hold metadata — which without a doubt is a major step towards alleviating concerns raised even by a predominately Obama-friendly panel of experts handpicked by the president to assess these issues last year.
“We recommend that Congress should end such storage and transition to a system in which such metadata is held privately for the government to query when necessary for national security purposes,” the review group wrote in a report given to Mr. Obama last year containing that recommendation and 45 others.
“In our view, the current storage by the government of bulk meta-data creates potential risks to public trust, personal privacy and civil liberty,” the group said then. “We recognize that the government might need access to such meta-data, which should be held instead either by private providers or by a private third party. This approach would allow the government access to the relevant information when such access is justified, and thus protect national security without unnecessarily threatening privacy and liberty.”
Mr. Snowden, the NSA leaker who exposed the metadata collection program last year, issued a statement through the American Civil Liberties Union earlier this week ahead of the White House’s proposal but in the midst of reports concerning the administration’s then-imminent announcement.
"This is a turning point, and it marks the beginning of a new effort to reclaim our rights from the NSA and restore the public's seat at the table of government,” Snowden said.
Legislation will be needed to implement the president’s proposal, and the White House says the president's office has been meeting with congressional leadership and members of the House and Senate Intelligence and Judiciary Committees to help realize the points of the administration’s plan. In the meantime, though, the president has reportedly instructed the Department of Justice to reauthorize the existing Section 215 program this week ahead of Friday when it is scheduled to expire if not renewed. Congress will then have another 90 days to draft and pass legislation that officially modifies the program.