Two New NSA Reform Proposals Announced
After a long quiet period on Capitol Hill, two new NSA reform proposals are being introduced this week. Currently, the NSA collects the telephone records of millions of Americans under Section 215 of the PATRIOT Act and stores these records in a database. The two proposals being introduced both purport to end the NSA’s bulk collection of phone records, and would ensure that phone records are kept by phone companies and provided to the NSA on request, rather than stored by the government itself.
A proposal announced by President Obama would end the bulk collection of phone records, as well as the practice of storing the records collected with the government. Under his plan, phone companies would hold the records for 18 months–the length of time for which they would normally hold records, rather than requiring the companies to hold the records for several years, as some in the intelligence community had advocated for and which the phone companies strenuously opposed. Obama’s proposal also requires the NSA to get a court order to obtain specific phone records held by the companies. Of course, Obama’s proposal would need to be passed by Congress to become law.
Another proposal, in the form of a bill authored by House Permanent Select Committee on Intelligence (HPSCI) members Rep. Mike Rogers and Rep. Dutch Ruppersberger, contains some of the same measures. The bill would end the bulk collection of phone records, and would also ban the bulk collection of most other kinds of data (like Internet records).
Although both proposals deserve some praise for responding to widespread public pressure to end the bulk collection of records, each has a drawback: President Obama’s proposal, as noted above, only addresses phone records. The president has not indicated whether he also supports a ban on the bulk collection of other types of metadata, like Internet use, financial records, and location information. The HPSCI bill has been criticized by privacy and anti-surveillance advocates for the authorization procedure it prescribes for the collection of records. The HPSCI bill would not require the NSA to get a court order to obtain specific records—instead, the U.S. attorney general and the Director of National Intelligence would jointly authorize a request for specific records, after which the NSA could issue a subpoena to a phone company.
While the president’s proposal can be seen as an encouraging first step towards the much broader reform of NSA surveillance that we need, the HPSCI bill’s failure to require court oversight of records requests is a fatal flaw. The NSA’s history of sweeping surveillance makes clear that prior judicial approval of their requests for records is necessary, and the fact that Obama’s proposal includes court oversight demonstrates that this is a realistic and achievable standard for individual requests.
As more details emerge about both proposals, we’ll take a closer look at their provisions and what they mean for writers and freedom of expression. We’ll also compare them to the USA Freedom Act, another proposal for NSA reform that many anti-surveillance advocates support.