Requiring a U.S. spy agency to obtain a warrant each time it wants customer records from phone companies isn’t a burden and won’t hinder terrorism probes, members of a White House advisory panel told lawmakers.
Panel members testifying before the Senate Judiciary Committee today defended a recommendation they made to President Barack Obama to prohibit the National Security Agency from collecting and storing bulk phone records, such as numbers dialed and call durations.
“I do not believe that we’re going to add a substantial burden to the government,” said Michael Morell, a former deputy CIA director and member of the panel. The government also could have emergency authority to obtain the records and then seek a court warrant at a later time, Morell said.
The group made the recommendation in a Dec. 18 report to Obama, who is expected to announce Jan. 17 what could amount to the most significant changes to U.S. spy programs since the Sept. 11, 2001 terrorist attacks. A central issue is whether to listen to the review group and have phone companies or a third party retain bulk phone records rather than the NSA.
Obama and lawmakers are considering restraints on government surveillance in response to a domestic and international backlash against the extent of NSA spying exposed since June by former government contractor Edward Snowden.
Removing the NSA from collecting and storing bulk phone records would “substantially” reduce the potential for government abuse, said Geoffrey Stone, a University of Chicago law professor. Panel members testified that they didn’t find any previous abuses.
“Government can do far more harm if it abuses information it has than private entities can,” Stone said. “There’s always the possibility of someone coming along down the road seeing this as a great opportunity to get political dirt on individuals.”
The Review Group on Intelligence and Communications Technology, which was appointed by Obama in August, concluded the phone records program “was not essential to preventing attacks” and information needed to disrupt terrorist plots “could readily have been obtained in a timely manner using conventional” court orders.
Morell said bulk phone records could be valuable to stopping a catastrophic terrorist plot inside the U.S. in the future.
The review group recommended that phone metadata be held by Verizon Communications Inc. (VZ), AT&T Inc. (T) and other carriers or another third party and accessed by the NSA only with a court warrant.
Stone said there could be privacy issues with companies holding the records, such as making them vulnerable to hacking. He said, however, that in the group’s thinking the benefits outweigh the risks.
The panel talked to phone company executives who said they “obviously would rather not hold that data,” Stone said. He didn’t disclose which companies were interviewed.
Spying programs exposed by Snowden have created a public debate over how much can be learned about individuals through metadata, such as phone records that include calls made but not the content of conversations.
Morell said he learned during the review that “there is quite a bit of content in metadata” and that “when you have the records of the phone calls that a particular individual made, you can learn an awful lot about that person.”
The phone records program “is not uniquely valuable enough to justify a massive intrusion on Americans’ privacy,” Patrick Leahy, a Vermont Democrat and chairman of the Senate Judiciary Committee, said during the hearing.
Dianne Feinstein, a California Democrat and chairman of the Senate intelligence committee, has vowed to kill legislation that would end the program.
Lawmakers are demanding, as part of a spending agreement reached yesterday, that NSA turn over data about the collection of phone records, including how many Americans had calls intercepted by the agency.
The agency also would have to provide an unclassified report describing all spy programs that collect bulk data, including the cost of the programs, what type of records are being gathered, and what kind of data the agency plans to get. The reports would be due 90 days after the spending bill is signed into law.
The review group also recommended that a special advocate be established to represent privacy interests before the secret court that oversees NSA spying.
At least one former judge on that court, however, is critical of the group’s recommendations.
In a letter released by Feinstein today, U.S. District Judge John D. Bates wrote that the participation of a public advocate in the court’s proceedings “is unnecessary” and could “prove counterproductive.”
The review group also suggested the court review and approve applications for national security orders, which are government demands for information. Currently, the government can issue the letters through an administrative process without court approval.
Bates, a former presiding judge on the secret court, said requiring the court to approve the letters could increase its work by more than 20,000 cases per year and “would fundamentally transform” the responsibilities of the body.
Bates’s criticism could carry weight because he was one of the judges that admonished the NSA for repeatedly misleading the court in rulings that have been declassified.
The government should provide the necessary resources for the court if the recommendations are adopted, Stone said.
Other members include Richard Clarke, a former U.S. cybersecurity adviser; Cass Sunstein, a Harvard Law School professor who once worked in the Obama administration; and Peter Swire, who served on Obama’s National Economic Council.
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