Just over seven months from the day The Guardian first published documents leaked by Edward Snowden proving that the government collects daily phone records on everyone in America, President Obama will give a speech in which he proposes ending that program — "as it currently exists." So what does that mean?
The "currently exists" formulation was provided by an anonymous administration official to CNN, who explained the changes that Obama will outline at 11 a.m. on Friday from the Justice Department in Washington. The president is "expected to act on recommendations from an independent panel," recommending that the phone records collection be continued by the NSA while he seeks input on where to store the data over the longer term. Given the political risk of unilaterally overhauling the program, as The Wire suggested on Thursday, Obama will ask Congress for ideas on what to do with the records. The "independent panel" — the group that Obama asked to look at the NSA's toolset and which returned a set of proposed changes last month — suggested that the records be stored with cell phone companies, with data available for review by the NSA as needed.
Reuters explains further how this will likely work. Now, records of phone calls are turned over to the NSA on a daily (or more frequent) basis. (The data is "metadata," including the phone numbers participating in a call and call length.) What Obama is expected to announce is that the data still be stored in a database or databases, but that it not be housed with the NSA itself. The program is due to be reauthorized at the end of March; the president will apparently ask that a solution for storing the data be developed by that point.
Perhaps more importantly, Reuters also indicates (again via an anonymous official) that Obama will immediately add another layer of privacy protection. Any attempt to search the database (to run a query, in the parlance) will require judicial approval in advance — beginning immediately. It's not clear what judicial authority would give that approval, though it's most likely the Foreign Intelligence Surveillance Court, the secret body that already approves the NSA's activity. One of the reforms privacy advocates have called for — including Obama's independent panel — was that there be someone in FISC hearings that could provide a counterpoint to the government's requests to spy on people. That doesn't appear to be a reform that Obama will announce.
The net effect of the proposals as reported, then, would be to build more of a wall between the government and that phone metadata, information that one federal judge, in excoriating the government's collection of it, said could reveal "an entire mosaic — a vibrant and constantly updating picture of the person's life." By taking the database out of the NSA's hands and requiring a judge's approval, it becomes trickier for the agency to see that mosaic. (Unless it hacks the site where the database ends up being held, of course.)
That judge was one of a number of voices that called into question the effectiveness of the program on the whole. The government has repeatedly called it an essential tool, but has only offered one instance in which it disrupted terror activity — an attempt to provide funding to a group in Africa. A member of the independent panel told NBC in December that the NSA didn't even consider the program cost-effective enough to implement it with smaller phone companies.
As articulated to the press, the reforms are modest, certainly ending the program "as it currently exists," but in no way ending the metadata program. When reports emerged earlier this week about what Obama would probably to do, The New York Times spoke with the executive director of the ACLU, Anthony Romero. "If the speech is anything like what is being reported, the President will go down in history for having retained and defended George W. Bush's surveillance programs rather than reformed them," Romero said. When Snowden was collecting NSA documents one year ago at this time, however, even this is likely more than he expected.
This article is from the archive of our partner The Wire.
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