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White House Proposes to End NSA’s Mass Collection of Phone Data – But Reforms Don’t Go Far Enough for Many Privacy Advocates

Responding to mounting public pressure, President Obama announced this week that he would be proposing legislation to end the National Security Agency’s mass collection of phone records. Under the new proposal, phone metadata would be stored by telephone companies, not the NSA, and could only be obtained by the NSA through a court order.  However many members of Congress as well as privacy advocates argue that the proposal does not go far enough and that the collection of bulk information must be ended altogether.

Under the new proposal, phone records could be obtained by the NSA only if the Foreign Intelligence Surveillance Court concluded the NSA had a “reasonable articulable suspicion” that the records were related  to a terrorist organization.  The NSA will be able to attain records from individuals who are within “two hops”, or two degrees of separation, from the suspected terrorist.

Telephone companies would be required to keep the bulk phone records for 18 months, which they are already required by law to do.  Previously, the NSA had held such records for up to 5 years. In addition, telephone companies would be provided with liability protection and reimbursement for their expenses.

While limiting the ability of the NSA to access phone records, the bill also increases the total amount of records.  Previously, the NSA could only collect roughly thirty percent of all phone calls.

Privacy advocates such as the ACLU have welcomed the proposal as a step forward, but have expressed some concerns.  Particularly they worry that the “reasonably articulable suspicion” and “two hop” standards are too vague and give too much freedom of interpretation to the NSA.  Others worry that the new safeguards will only be limited to call records and will not include other bulk information such as email, social networking or financial transaction data.

Many privacy advocates have instead rallied around the USA Freedom Act introduced in both houses of Congress by Representative Jim Sensenbrenner (R-Wis.), the author of the Patriot Act, and Senator Patick Leahy (D-Vt.), the Chairman of the Senate Judiciary Committee. This bill would go further than the White House proposal by ending bulk surveillance altogether and would require an individualized warrant to collect phone data related to an “ongoing criminal investigation.”  Critics of the USA Freedom Act such as Chairman of the House Intelligence Committee Mike Rogers (D-Mich.) argue the bill does not provide the NSA with the intelligence tools needed to protect the country from a future terrorist attack.

If passed, the White House proposal would significantly curtail the ability of the NSA to access citizen’s phone records without a warrant.  However, for many, the law does not go enough far enough because it fails to completely end the bulk data collection program.  Regardless of which path Congress decides to take, it is likely that there will be major changes to the NSA’s bulk collection program in the coming year.

About the Author

Michael Coburn

Michael Coburn is a Staffer for the Columbia Science and Technology Law Review. He is a 2L at Columbia Law School.
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