Washington, March 25: The Obama administration is preparing to unveil a legislative proposal for a far-reaching overhaul of the National Security Agency’s once-secret bulk phone records programme in a way that — if approved by Congress — would end the aspect that has most alarmed privacy advocates since its existence was leaked last year, according to senior administration officials.
Under the proposal, they said, the NSA would end its systematic collection of data about Americans’ calling habits. The bulk records would stay in the hands of phone companies, which would not be required to retain the data for any longer than they normally would.
And the NSA could obtain specific records only with permission from a judge, using a new kind of court order.
In a speech in January, President Obama said he wanted to get the NSA out of the business of collecting call records in bulk while preserving the programme’s abilities.
He acknowledged, however, that there was no easy way to do so, and had instructed justice department and intelligence officials to come up with a plan by March 28 — Friday — when the current court order authorising the programme expires.
As part of the proposal, the administration has decided to ask the Foreign Intelligence Surveillance Court to renew the programme as it exists for at least one more 90-day cycle, senior administration officials said. But under the plan the administration has developed and now advocates, the officials said, it would later undergo major changes.
The new type of surveillance court orders envisioned by the administration would require phone companies to swiftly provide records in a technologically compatible data format, including making available, on a continuing basis, data about any new calls placed or received after the order is received, the officials said.
They would also allow the government to swiftly seek related records for callers up to two phone calls, or “hops,” removed from the number that has come under suspicion, even if those callers are customers of other companies.
The NSA now retains the phone data for five years. But the administration considered and rejected imposing a mandate on phone companies that they hold on to their customers’ calling records for a period longer than the 18 months that federal regulations already generally require — a burden that the companies had resisted shouldering and that was seen as a major obstacle to keeping the data in their hands.
A senior administration official said that intelligence agencies had concluded that the operational impact of that change would be small because older data is less important.
The NSA uses the once-secret call records programme — sometimes known as the 215 programme, after Section 215 of the Patriot Act — to analyse links between callers in an effort to identify hidden terrorist associates, if they exist. It was part of the secret surveillance programme that President George W. Bush unilaterally put in place after the terrorist attacks of September 11, 2001, outside of any legal framework or court oversight.
In 2006, as part of a broader Bush administration effort to put its programs on a firmer legal footing, the justice department persuaded the surveillance court to begin authorising the programme.
It claimed that Section 215, which allows the FBI to obtain court orders for business records deemed “relevant” to an investigation, could be interpreted as allowing the NSA to systematically collect domestic calling records in bulk.
Marc Rotenberg, the executive director of the Electronic Privacy Information Centre, called the administration’s proposal a “sensible outcome, given that the 215 programme likely exceeded current legal authority and has not proved to be effective”.
While he said that he would like to see more overhauls to other surveillance authorities, he said the proposal was “significant” and addressed the major concerns with the NSA’s bulk records programme. Jameel Jaffer of the American Civil Liberties Union said, “We have many questions about the details.”