Obama and Congress look to rein in the NSA with three competing proposals
The House Intelligence Committee is set to announce a bill that would curtail the National Security Agency's bulk data collection while simultaneously lowering the standards used to collect information on individuals, according to the Guardian and the Wall Street Journal. The bill would allow intelligence agencies to query metadata stored by telecom companies based on the "reasonable articulable suspicion" standard and retroactive approval from the FISA Court.
The bill, currently known as the End Bulk Collection Act, competes with another bill that would limit the NSA's bulk data collection without lowering the standards used to gather information about individuals. That bill has bipartisan support from 163 co-sponsors and has been seen as a more comprehensive response to NSA programs revealed in the last 10 months.
The End Bulk Collection Act is expected to be announced later today. The New York Times reports that President Obama also plans to propose a system this week that would allow government agencies to ask telecom providers for data about people within "two hops" of suspected terrorists so long as they had been granted that authority by a judge.
Obama's proposal will place the metadata previously collected by the NSA in the hands of private companies that would have to store the data for 18 months and create a system that allows government agencies to easily request and receive data in a "technologically compatible data format, including making data available, on a continuing basis, data about any new calls placed or received after the order is received," according to the New York Times report.
Both efforts are expected to be formally revealed later this week. In the meantime, Obama is expected to ask for a 90-day extension of the current program, which is set to expire Friday. Then lawmakers will have to choose which of these three options -- the End Bulk Collection Act, the USA Freedom Act, or the yet-unnamed proposal from the White House -- will be implemented in the wake of backlash from both the public and private companies affected by the NSA's surveillance apparatus.
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Congressman James Sensenbrenner, co-author of the USA Freedom Act, casts doubt on the End Bulk Collection Act (EBCA) in a statement to Politico:
Congress must pass a straightforward bill to address NSA overreach. The End Bulk Collection Act is a convoluted bill that accepts the administration’s deliberate misinterpretation of the law. It limits, but does not end, bulk collection. Provisions included in the draft fall well short of the safeguards in the USA FREEDOM Act and do not strike the proper balance between privacy and security. The End Bulk Collection Act will not have my support.The Wall Street Journal explains why the EBCA doesn't require a judge's approval for data collection:
A competing bipartisan bill drafted by House Judiciary Committee member James Sensenbrenner (R., Wis.) would ban all bulk-records collection, including financial records and any other type of business records. It also would require a judicial order be obtained for any request for phone or other records and that it be connected to an ongoing international terrorism investigation.
The House intelligence committee bill doesn't require a request be part of an ongoing investigation, Mr. Ruppersberger said, because intelligence probes aim to uncover what should be investigated, not what already is under investigation. The Washington Post's Stewart Baker decries Obama's reported proposal because it favors privacy over bipartisanship and apparently that's a terrible, awful thing:
The House intelligence committee has been working to produce a bipartisan replacement for the metadata program. The President had a chance, rare for him, to embrace bipartisanship and work with the House committee. This certainly looks doable, since it appears from press coverage that the differences between the White House and the House approach are modest.
Instead, the White House just couldn’t resist sniping at the House and posturing itself as a hair more privacy protective than the bipartisan House approach. This is a sadly familiar story; the White House did the same thing on CISPA, the cybersecurity information sharing bill. There the White House tacked left at the last minute, threatening to veto a bipartisan House bill because it lacked privacy protections that the President’s own bill hadn’t included. Pando weighs in
Yasha Levine wrote about the nightmare of privatizing metadata records in January:
The notion that privatizing metadata storage will protect our privacy and civil liberties is insane, dangerous and just plain ol’ wrong.
It would make our private data less secure, offer fewer legal protections and be huge giveaway to private security contractors like Booz Allen, opening the door to all sorts of other corrupt privatization schemes and unaccountable illegal activity. No matter how much it may abuse its mandate, our government is still legally required to protect our constitutional rights — something that corporations are not obligated to do.
In short: mandating the privatization of intel storage would be a cluseterfuck in just about every possible way. I wrote about the information that can be gleaned from metadata earlier this month:
The study is another indictment of the United States government’s claims that gathering phone call metadata from millions of Americans is not an invasion of privacy. It doesn’t matter that no-one is listening to those phone calls. Unless the second most well-funded intelligence agency is less capable than two graduate students — which is doubtful, given its ability to surveil millions of people — metadata can be used to infer all kinds of information.
But anyone following the NSA revelations and their ensuing debates already knew that. The American Civil Liberties Union previously published a declaration from Princeton professor Edward Felten, who wrote that “many details of our lives can be gleaned by examining those [metadata] trails, which often yield information more easily than do the actual content of our communications.” The Guardian explained the information shared as metadata when people use their smartphones, search the Web, or access Facebook. The idea that anyone can say that the NSA is “just” collecting metadata with a straight face was proven ludicrous a while ago. Illustration by Brad Jonas for Pando.