Obama Wants Congress to Make NSA Snooping Less Illegal

The president will ask Congress to end the NSA's bulk metadata collection program.

Image: White House/Flickr

President Barack Obama will ask Congress to end the NSA's bulk metadata collection program. The current program, which collects and stores as much metadata as possible, will be replaced with a legal framework by which the NSA can collect metadata for specific terror-related targets with approval on a case-by-case basis from the Foreign Intelligence Surveillance Court, which oversees the NSA's activities.

This is according to a senior official speaking with the New York Times, which broke the news last night. According to the Times, this means that companies like Verizon, which were compelled to collect and store phone data, will now be free to store records as they please, for as long as they please. Meanwhile, records will only be allowed to be collected with approval from a new type of court order, although such an order would also approve real-time collection of call data from targeted phone numbers.

The new plans come about two months after a federal review board condemned the NSA's activities as illegal. According to the Washington Post, the administration plans to renew the current metadata program for one final 90-day collection period, which would start when the current court orders expire this Friday. 

The news sheds light on comments made by Obama in a January speech in which he assured that he would "end bulk metadata collection as it currently exists." It's clear that metadata, which can reveal a person's politics, religion, and health concerns, is a powerful tool when used correctly. More importantly, it's not anonymous, despite its supposed anonymity being a key part of the legal rationale for collecting millions of American's phone records.

Should the program be changed as it's been briefly described, it sounds like it would be much similar to warrant requirements for law enforcement, which cannot be overly broad. (Certainly not so broad as "collect everyone's phone records hoping for a match sometime down the road.") While it's going to be tough for the NSA to win much popular support for any surveillance activities, getting court approval for each specific target at least would bring its activities closer to the standards for regular law enforcement.

However, there are a couple potential problems with this scenario. The first is the Foreign Intelligence Surveillance Court's (FISC) own track record. Because FISC deals with highly-sensitive intelligence material, its proceedings are closed to the public. That secrecy has led to some startling admissions following Edward Snowden's initial leaks.

For one, FISC approved a number of NSA surveillance requests despite knowing that the agency has been serially misleading in its applications. While FISC has countered that it only approves the vast majority of final requests, the simple matter is that FISC has zero public oversight. It does seem certain, however, that requiring the NSA to submit requests one by one will slow its records collection.

The other big question is how Congress will respond. Congress is largely responsible for legalizing bulk metadata collection in the first place, and still supported the Foreign Intelligence Surveillance Act as recently as last year

But there is change on the horizon. According to the Post, a pair of representatives on the House Intelligence Committee, committee chairman Rep. Mike Rogers (R-MI) and ranking Democrat Rep. C.A. Dutch Ruppersberger (MD), plan to reveal new legislation today that would bar the bulk collection of any electronic data, from call records to internet history and location data.

One key sticking point is the duo's insistence that authorities be allowed to request data from telecom providers before receiving court approval to use it, which is particularly weak phrasing. So while it's clear that the current metadata collection program will be changed in coming months, it's not yet clear how big of a change it will be.