activity, scuttling most of a post-9/11 program to track
communications among terrorism suspects. He could end it himself but
is opting to seek Congress’s approval.
President Obama is proposing that the National Security Agency end its
practice of collecting mountains of data on Americans’ phone calls.
According to an account in the Associated Press, the administration
this week will send Congress draft legislation that would replace this
part of the NSA dragnet with a more limited program, under which phone
companies would keep “metadata” phone information for 18 months, as
they do now for business purposes.
U.S. spy agencies would have to obtain the consent of the secret
Federal Intelligence Surveillance Court every time they want to search
the data for a particular phone number, according to the AP. Before
giving their approval, FISA court judges would have to be convinced
that phone number might be linked to terrorist activity.
If it becomes law, this proposal would represent a major change in
U.S. surveillance activity. The NSA itself currently siphons up and
holds information on numbers called, duration of calls, and other
markers on vast amounts of U.S. telecommunication activity.
The NSA retains these data for five years. Agency analysts can conduct
searches for specific numbers, without court approval.
Begun in the wake of the 9/11 terrorist attacks to try to track
connections between terrorism suspects, the effort is often referred
to as the “215 program,” after the section of the Patriot Act that
governs it. Its existence and scope were revealed by NSA-connected
leaker Edward Snowden.
Privacy advocates are generally supportive of the administration’s
“The indiscriminate collection of phone records is neither legal nor
useful. As the president seems to have recognized, there is no
justification for continuing a program that undermines constitution
values with no proven benefit to security,” said Faiza Patel,
co-director of the Brennan Center for Justice at New York University
School of Law, in a statement issued Tuesday.
But the White House approach comes with a number of questions. Most
notably, what would Mr. Obama do if Congress does not pass this bill,
or if it passes a significantly different piece of legislation?
After all, agreement is in short supply on Capitol Hill these days,
and the NSA dragnet is a controversial government activity. Some
lawmakers have defended it as a necessary national protection, while
others have inveighed against it as an unconstitutional infringement
of Americans’ privacy rights.
Congress is already debating this question on its own. A competing
bill announced Tuesday by Rep. Mike Rogers (R) of Michigan, the House
Intelligence Committee chairman, and Rep. C.A. Dutch Ruppersberger (D)
of Maryland would also end government collection of phone records, but
it would not require prior court approval for NSA searches of these
So why get Congress involved at all? Obama could end the 215 program
with a stroke of his executive pen. He’s commander in chief and has
direct jurisdiction over the NSA. There is nothing in Section 215 of
the Patriot Act that requires the NSA to carry out this activity.
For one thing, Obama may want to make sure the program is ended for
good. He could end it via executive order, but if he does that, a
subsequent president could revive it at any time. A legislative fix
would keep that from happening.
The big telecommunications firms also would almost certainly prefer
this to be handled by a bill. They don’t want to be seen as aiding and
abetting an NSA abuse of the privacy rights of their customers. A law
that would limit the companies’ legal responsibilities, and make clear
that the NSA must go to court every time it wants to search a phone
number, could make clear to customers that the firms are not colluding
with the government in any secret way.
Finally, Obama may want to make sure that responsibility for ending
the program is widely shared. After all, what if something bad
“If the president unilaterally ended the program and a terror attack
followed, it wouldn’t take long for Obama to be blamed for weakening
America’s defenses to the detriment of American lives,” writes Philip
Bump of “The Wire” in his own analysis of Obama’s motives.
Congressional passage of legislation could head off such finger-pointing.