By Ryan Gierach, West Hollywood, California
President Barack Obama announced today that he will seek legislation that would replace the National Security Agency’s program collecting US telephone data in bulk with a new system that culls that data from phone companies, but more selectively, hewing more closely to legislators’ ideas than the security community’s.
“Having carefully considered the available options, I have decided that the best path forward is that the government should not collect or hold this data in bulk. Instead, the data should remain at the telephone companies for the length of time it currently does today,” said President Obama in a statement issued as he traveled in Europe.
Representative Adam Schiff, Democrat serving West Hollywood, has been at the forefront of the fight to get a handle on the abuses of privacy committed by the National Security Administration and applauded the action.
“The President’s decision to end bulk collection of domestic telephone records while retaining the intelligence capabilities we need is exactly the right call,” said Rep. Schiff.
“By moving to a system in which phone companies retain their own data, and searches are only conducted pursuant to an individualized court order, we will be able to protect both the country, as well as the privacy and civil liberties of Americans.
“The ball is now in Congress’s court to take up legislation to end bulk collection of telephone metadata under this and future administrations, and to enact other important reforms like a meaningful adversarial process within the FISA Court and greater transparency and disclosure of its working and decisions.”
In the immediate aftermath of the Edward Snowden revelations about the NSA spying on Americans’ Internet, E mail and telephone usage, Rep. Schiff, serving on the House’s Permanent Select Committee on Intelligence, began asking for an accounting.
The committee oversees the nation’s intelligence activities, including the Central Intelligence Agency (CIA), the Office of the Director of National Intelligence (DNI), and the National Security Agency (NSA). As a member of the committee, Rep. Schiff serves as Ranking Member on the Subcommittee on Technical and Tactical Intelligence, so this subject is in his portfolio.
President Obama gave a speech on January 17, 2013, at the Department of Justice on his Administration’s review of certain intelligence activities. During this speech, he ordered a transition that would end the Section 215 bulk telephony metadata program as it previously existed and establish a new mechanism to preserve the capabilities we need without the government holding this bulk metadata.
The President made clear that he was ordering this transition to give the public greater confidence that their privacy is appropriately protected, while maintaining the tools our intelligence and law enforcement agencies need to keep us safe.
On June 24, 2013, Rep. Schiff and and Rep. Todd Rokita (R-IN) introduced bipartisan legislation which would shed light on the law governing NSA surveillance programs recently revealed in press reports. That bipartisan bill would require the Attorney General to declassify significant Foreign Intelligence Surveillance Court (FISC) opinions, allowing Americans to know how the Court has interpreted the legal authorities created under Section 215 of the PATRIOT Act and Section 702 of the FISA Amendments Act.
The disclosure bill, a complement to one pushed in the Senate last week, is an attempt to rein in the NSA’s collection and analysis of Americans’ phone records and, potentially, Internet usage, as well as put the public’s mind at ease about the uses to which the data being collected is put.
Rep. Schiff recently introduced the Telephone Metadata Reform Act, which would restructure the telephone metadata program by specifically removing call records from the types of information the Government can obtain under Section 215 of the PATRIOT Act. Instead, records would be obtained on a case by case basis from the telephone companies subject to approval by the Foreign Intelligence Surveillance Court.
Schiff’s proposal mirrors the restructuring of the telephone metadata program recommended by the President’s Review Group on Intelligence and Communications Technologies, as well as changes that Congressman Schiff has been advocating for since before the metadata program was made public. The Review Group’s report stated that having telecommunications firms retain their records “would greatly reduce the intake of telephony meta-data by NSA, and it would therefore also dramatically (and in our view appropriately) reduce the risk, both actual and perceived, of government abuse.”
“For a long time, I’ve been pushing to have the call records held by phone companies and “queried” on a case-by-case basis, instead of the government’s collecting vast amounts of domestic phone records,” said Rep. Schiff.
“This idea gained new momentum last month with the President’s NSA review panel’s endorsement that restructuring the program is both technically feasible and more protective of the privacy interests of the American people. My legislation would restore the balance between security and privacy by allowing law enforcement and the intelligence community to access records when needed, but also respecting the privacy of Americans by ending government possession of these vast database.”
Schiff’s bill would end the telephony bulk collection program as it is currently constituted, while still allowing the NSA and law enforcement to look at the records as needed for law enforcement and anti-terrorism activities:
- Terminates the existing bulk telephony metadata program.
- Allows the Director of the FBI to make an application to the Foreign Intelligence Surveillance Court requiring a telecommunications carrier to search their call records based on a particular “seed” call record upon showing a reasonable suspicion that the “seed” record is associated with a specific foreign terrorist organization or specific foreign intelligence. The FISC could approve or deny a request. If the FISC approves, a phone carrier would have 12 hours to return the call records to the FBI in the proper format.
- The bill includes a provision for exigent situations in which it is not practicable to wait for FISC approval. Under this provision, the FBI Director would make a determination and order telecommunications firms to search their phone records on an emergency basis with a response required within 6 hours. The FBI would be required to notify the FISC immediately that it had exercised its emergency authority and to seek approval of the orders by the FISC within 72 hours.
- The legislation does not impose any new burden on telecommunications companies to retain phone records.
First, he introduced the “Ending Secret Law Act” which would require the Attorney General to declassify significant Foreign Intelligence Surveillance Court (FISC) opinions, allowing Americans to know how the Court has interpreted the legal authorities created under Section 215 of the PATRIOT Act and Section 702 of the FISA Amendments Act.
Second, the congressman introduced legislation to require that the 11 judges on the Foreign Intelligence Surveillance Court (FISC) be nominated by the President and confirmed by the Senate.
Finally, Rep. Schiff introduced legislation to require the Privacy and Civil Liberties Board to create a pool of attorneys with experience in Fourth Amendment or national security law to argue the side of the public when the government requests a surveillance warrant in the FISA Court.
According to the press release and statement issued today from the White House entitled “Ending the Section 215 Bulk Telephony Metadata Program as it Existed,” the President has decided on a proposal that will, with the passage of appropriate legislation, allow the government to end bulk collection of telephony metadata records under Section 215, while ensuring that the government has access to the information it needs to meet its national security requirements.
| “Under the President’s proposal, a new program would be created with the following key attributes:
“The President believes that this approach will best ensure that we have the information we need to meet our intelligence requirements while enhancing public confidence in the manner in which this information is collected and held.”
For the second step in the transition, the President instructed the Attorney General and the Intelligence Community (IC) to develop options for a new program that could match the capabilities and fill the gaps that the Section 215 metadata program was designed to address without the government holding the bulk telephony metadata records.
The President further instructed the Attorney General and the IC to report back to him with options for alternative approaches before the program comes up for reauthorization by the FISC on March 28th.
“The President believes that this approach will best ensure that we have the information we need to meet our intelligence requirements while enhancing public confidence in the manner in which this information is collected and held,” said the statement.
The document also called for legislative cooperation. “ The Administration has been in consultation with congressional leadership and members of the Intelligence and Judiciary Committees on this important issue throughout the last year, and we look forward to continuing to work with Congress to pass a bill that achieves the goals the President has put forward.”
Because these changes cannot occur instantly, the President asked the DOJ to allow the current system to remain in place for 90 days.