NSA accepts proposed Congressional curbs on bulk data collection

Published 6 May 2015

The NSA’s domestic bulk phone metadata collection program, authorized under Section 215 of the U.S.A. Patriot Act, is set to expire on 1 June. The agency has faced sharp criticism ever since former NSA contractor Edward Snowden revealed details in 2013, claiming that under Section 215 the NSA required major telecommunications companies, through a Foreign Intelligence Surveillance Act court order, to release bulk phone metadata directly into NSA computers.

Congress is now gearing up to pass new legislation, called the USA Freedom Act, to curb the NSA’s ability to store domestic phone metadata, instead keeping the information with telecommunications companies and only gain access to it when the Foreign Intelligence Surveillance Court issue an order and when there is a “reasonable, articulable suspicion” that a “specific selection term” used to request data is associated with international terrorism.

An analysis of the proposed House legislation by the Electronic Frontier Foundation, said the bill “should end” the bulk collection of “everybody’s phone records.” The EFF analysis also pointed out that the NSA could still search for records beyond phone data with fewer restrictions, and the legislation did not address warrantless collection of Americans’ international call and e-mails under Section 702 of the Foreign Intelligence Surveillance Act amendments of 2008.

A panel of experts appointed by President Barack Obama in 2013 found that the domestic bulk collection program had been of minimal intelligence value and risked invading Americans’ privacy. “NSA believes that on at least a few occasions, information derived” had “contributed to its efforts to prevent possible terrorist attacks, either in the United States or somewhere else in the world,” the report read, but added that the panel’s review showed that the information collected under the program “was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional” court orders. The panel recommended legislation that “terminates the storage of bulk telephony metadata by the government” and that metadata be held instead by telecommunications firms or by some other third party.

The New York Times reports that NSA officials have welcomed the proposed restrictions, saying many within the agency doubted the effectiveness of its bulk metadata collection program. Former intelligence officials have went as far as saying that the idea to store the data with telecommunications firms rather than with the NSA came from Gen. Keith B. Alexander, then the NSA director. Alexander, they said, saw the move as a way for Obama to respond to public criticism without losing programs the NSA deemed more essential.

Cynthia Wong, the senior Internet researcher at Human Rights Watch, sees the legislation as a way forward. “While we are disappointed that the bill falls short in some areas, Congress shouldn’t put off reform any longer,” she said. “The U.S. should show the world that it can take privacy seriously while protecting its national security in the digital age.”

Still, some privacy advocates are unsatisfied. “If this bill passes, the NSA will continue unaddressed surveillance programs and will secretly torture the English language to devise novel justifications for spying on Americans,” said David Segal, executive director of Demand Progress. “We won’t even know the details until a new whistle-blower comes forward a decade or two from now.”

The USA Freedom Act passed the House Judiciary Committee last Thursday with bipartisan support, and it appears headed for approval by the full House. It attracted some Republican votes by increasing penalties for individuals convicted of material support for terrorism and by allowing intelligence agencies to keep tracking suspected terrorists for seventy-two hours after they enter the United States before needing a warrant. “Of course, it’s not everything that I want,” John Boehner (R-Ohio) said last week. “But I think it’s a solid agreement.” The legislation faces uncertainty in the Senate, where a similar bill failed by two votes to overcome a filibuster last year. Yet because Section 215 will expire on 1 June, Congress is forced to pass a bill addressing the NSA’s bulk metadata collection rather than letting the program end altogether.