President Obama will likely announce the reforms he intends to make to the National Security Agency next week, and in that decision-making process is meeting with a variety of stakeholders. The emerging consensus is that he is likely to restrict the government's access to private phone records, but that bulk collection won't end.
WASHINGTON (AP) — President Barack Obama is expected to rein in spying on foreign leaders and is considering restricting National Security Agency access to Americans' phone records, according to people familiar with a White House review of the government's surveillance programs. [...]Privacy advocates will have what might be their last chance to convince the administration to end bulk collection entirely, Spencer Ackerman reports. Representatives from major privacy and civil libertarian organizations—the American Civil Liberties Union, the Electronic Privacy Information Center (Epic) and the Open Technology Institute—are meeting with White House counsel Kathryn Ruemmler to press the case that bulk collection and NSA's essentially unfettered access to that data needs to end. They'll argue for "a higher legal standard for allowing intelligence or law enforcement agencies to access any database of Americans’ phone records, pursuant to a court order ahead of any search except in extreme cases."
The president also is said to be considering one of the review board's most aggressive recommendations, a proposal to strip the NSA of its ability to store telephone records from millions of Americans and instead have phone companies or a third party hold the records. The NSA would be able to access the records only by obtaining separate court approval for each search, though exceptions could be made in the case of a national security emergency.
Currently the NSA does not have to obtain a court order for any individual search; every 90 days the secret surveillance panel known as the Fisa Court issues omnibus authorizations for bulk collection and analysis based on “reasonable articulable suspicion” of terrorist connections.There are also real problems, the NSA and privacy organizations and telecoms agree, with creating a third-party database from the records telecoms are already collecting. Currently they hold customer information for an average of 18 months before destroying it, while the NSA holds it for five years. Additionally, the companies don't use the same file formats, making creating a single, third-party storehouse a problem. And the NSA and privacy groups agree that a massive, thirdy-party database that held all Americans' data would be a nightmare to keep secure. That's just one of the reasons telecoms don't really want to have the responsibility for the data.
“Reasonable articulable suspicion, we still think that’s too vague,” said Michelle Richardson, the ACLU’s surveillance lobbyist.
What, of course, makes the most sense is to end mandatory data retention, and to have a much higher bar in the FISA for the NSA, requiring that it prove that “tangible things sought … are relevant and material to an authorized investigation,” and limited to foreign powers, people working for foreign powers and are actually somehow directly associated with a current investigation. All these things are in Sen. Patrick Leahy's and Rep. Jim Sensenbrenner's USA Freedom Act.