NSA Records Collection Ban Seen Failing to Curb SpyingChris Strohm and Laura Litvan
After eight months of disclosures on U.S. spying on allies and foes alike, the fix proposed by President Barack Obama and top lawmakers still would let the government access phone and Internet records.
The proposal gaining support would bar the National Security Agency from stockpiling phone records yet allow the government to go to AT&T Inc., Verizon Communications Inc. and other U.S. carriers to obtain the data, such as numbers dialed and call durations without content.
“The phone companies are always going to keep your phone records,” James Lewis, a senior fellow at the Center for Strategic and International Studies in Washington, said in a phone interview. “The NSA won’t hold it. It will just take a little longer and court approval to get it.”
Revelations about U.S. surveillance by former U.S. contractor Edward Snowden last year has set off a global debate over the trade-offs between privacy and security.
There doesn’t appear to be momentum to make significant changes to other spy programs exposed by Snowden, Lewis said. Documents he leaked showed that the NSA acted to weaken standards used to encrypt and protect data, hacked into fiber optic cables abroad to steal information from Google Inc. and Yahoo! Inc., and possibly infected millions of computers globally with malware.
Snowden also revealed a program known as Prism under which the U.S. compels Internet companies to hand over e-mails and other Internet data related to suspected foreign terrorists, even if the data includes communications of Americans.
Representative Mike Rogers of Michigan, the Republican chairman of the House intelligence committee, told reporters yesterday that changes to the Prism program aren’t needed.
“I don’t believe that foreign collection on foreign soil is something that we need to change,” he said. Rogers said it would be “foolish and irresponsible” to disrupt other NSA spying programs. He said some revelations based on the documents leaked by Snowden aren’t accurate, such as allegations that the U.S. conducts economic espionage.
Rogers and Representative C.A. “Dutch” Ruppersberger of Maryland, the top Democrat on the House intelligence panel, unveiled legislation yesterday under which the government would no longer keep phone records en masse and instead issue directives to carriers to search their files for the information.
The bill is the “start of a bipartisan conversation” on how to balance security with privacy concerns, House Speaker John Boehner told reporters today.
Obama said at a news conference yesterday in the Netherlands that recommendations he sought from intelligence officials on ending the data storage by the government won’t compromise national security.
The president said intelligence officials presented him with “workable” changes after he asked for alternatives to having the NSA collect and hold phone records. Until Congress makes changes, Obama has ordered that the current program be renewed with changes he outlined in January.
“I’m confident that it allows us to do what is necessary to deal with the dangers of a terrorist attack but does so in a way that addresses some of the concerns that people have raised,” Obama said during a stop on his trip to Europe, where the NSA surveillance has been a source of tension between the U.S. and Germany.
He said his administration would work with Congress to pass legislation “quickly.”
“The president is not far from our position,” Rogers said. “We look forward to putting the final touches on the negotiations.”
The biggest difference lawmakers need to resolve with the Obama administration is whether the Federal Bureau of Investigation should be required to get a warrant before issuing a directive to the phone companies, Ruppersberger said in an interview. The bill wouldn’t require a court review until after the FBI makes its requests.
Any changes to the current system require action by Congress. The bipartisan agreement on the House bill is significant because the intelligence committee will play a key role in restraining spying programs.
Some lawmakers said details need to be resolved.
“Should we modify the way we’re doing it?” Senator Saxby Chambliss, the top Republican on the Senate intelligence committee, said in an interview. “Should we change who holds the information? All of that is going to be debated and discussed between us and the White House.”
Representative Justin Amash, a Michigan Republican, said the bill would “expand the scope of the searches so that more records can be collected by the government.”
The bill from Rogers and Ruppersberger is flawed in that it doesn’t require prior court approval before the government can obtain phone records, said Harley Geiger, senior counsel at the Center for Democracy and Technology, a privacy advocate in Washington. On the other hand, Obama’s approach could be flawed if he doesn’t ban the collection of bulk data beyond phone records, Geiger said in a phone interview.
“None of the legalization covers the full breadth of the problems raised by U.S. surveillance activities,” he said. “It is up to the American public to show that this is a priority for voters and therefore it needs to be a priority for Congress.”
Snowden, who’s facing U.S. espionage charges and living in Russia under temporary asylum, exposed a classified order from a secret court under which the NSA compels U.S. carriers to turn over phone records on billions of users globally.
Under the proposal from Rogers and Ruppersberger, phone companies would search their databases of call records based on numbers provided by the government. The companies would send the search results to the government and wouldn’t be required to retain the records any longer than they normally do.
Government directives to the carriers would be reviewed by the secret court after searches are done, according to the House members’ plan. The companies also could challenge a directive before the court.
The directives wouldn’t have to relate to an existing terrorism investigation. The absence of such a requirement may draw opposition from other lawmakers and privacy advocates who want government leeway to be narrow.
The House intelligence panel bill also prohibits the government from collecting bulk e-mail or Internet records. It would let the government issue a directive compelling Internet service providers to search and hand over e-mail records and other online data about users when that information is connected to specific cases, Ruppersberger said.
The Obama administration and lawmakers are under pressure from Internet companies and civil liberties advocates to restrain U.S. spying. Obama has said his administration already ended some of the surveillance practices disclosed by Snowden and in January promised further restraints while defending spying as a bulwark against terrorism.
On March 21, the president met at the White House with Facebook Inc. Chief Executive Officer Mark Zuckerberg and five other Internet and technology executives to discuss NSA spying following revelations the agency may have infected millions of computers globally with malware to advance surveillance.
The current phone-records order from the Foreign Intelligence Surveillance Court expires March 28, when it could be renewed for three months.
One terrorist attack and the priority to restrain the spy programs could change, Senator Lindsey Graham, a South Carolina Republican, said in an interview. Current authority for the NSA phone-records program expires in June 2015, a deadline that’s forcing lawmakers to act.