The NSA Could Actually Spy on More Phone Calls Under Reform Bill

The legislation could help the agency collect cell-phone records.

CHICAGO - APRIL 02:  Pedestrians stand at an intersection in the Loop talking on her cell phone April 2, 2008 in Chicago. Illinois Secretary of State Jesse White has proposed to ban on the use of a cell phones while crossing the street.  (Photo by Scott Olson/Getty Images) (National Journal)

Lawmakers want to rein in the National Security Agency, but their bill could actually give the agency access to more Americans' records.

Rick Ledgett, the NSA's deputy director, acknowledged during a Senate hearing Thursday that the USA Freedom Act could "potentially" help the NSA gain access to records on millions of cell phone calls that are currently out of the agency's reach.

"Under the guise of further protecting privacy "¦ the universe [of call records] will be exponentially larger than what the prior system was," Sen. Mark Warner, a Virginia Democrat, warned during the hearing of the Senate Intelligence Committee.

People increasingly rely on cell phones instead of landline phones. But due to technical obstacles, the NSA struggles to collect records for most cell-phone calls, according to reports earlier this year from The Wall Street Journal and The Washington Post.

Although the goal of the NSA's controversial bulk record-collection program is to sweep in every U.S. phone call, the agency actually collects data on less than 30 percent of calls, according to the reports.

Last month, the House passed the USA Freedom Act, which would force the NSA to give up its massive database of phone records, which contains phone numbers and timestamps of millions of landline calls. Under the bill, the NSA would have to receive court approval for each search of a phone company's records.

But the legislation includes a provision that would require the phone companies to provide "technical assistance" to help the NSA collect the data in a readable format.

That provision could allow the NSA to more easily access millions of cell-phone records, according to Mark Jaycox, a legislative analyst for the Electronic Frontier Foundation, a privacy-advocacy group.

"Because of the technical-assistance provision, and because of the way they're defining 'call-detail records,' they are able to get more metadata concerning mobile phones," Jaycox said.

So while the bill would reduce the total number of records in the NSA's possession, it could allow the NSA to spy on cell-phone calls that it is currently unable to access.

During Thursday's hearing, Warner also expressed concern that the bill could allow the NSA to more easily collect cell-phone location data, empowering the agency to track a person's every movement.

James Cole, the deputy attorney general, said the NSA won't collect cell-phone location data in bulk, and noted that the government has always been able to gain court approval for location information on a particular target.

"I think it would require the court to take a look at whether or not it was appropriate under the facts and circumstances of the request to provide location information as well as the call-data records," Cole explained.

The NSA has acknowledged that it collected cell-phone location data in bulk as part of a secret pilot program in 2010 and 2011.

Whether the government needs a warrant to collect location data remains an open legal question. Police routinely collect other records from phone companies using only a subpoena.

But the Supreme Court ruled in 2012 that planting a GPS tracking device on a suspect's car qualifies as a search under the Fourth Amendment.