The National Security Agency’s capability to snoop on virtually all U.S. telecommunications has lost some of its punch. On Thursday, the Obama administration announced that the Foreign Intelligence Surveillance Court (FISC) has approved two of the president’s proposed changes.
In a speech on Jan. 17, President Obama ordered a restructuring of the NSA-run “bulk telephony metadata program,” which had scarfed up records about millions of U.S. phone calls. The intent, according to a statement issued Thursday by Director of National Intelligence James R. Clapper, is to “establish a mechanism that preserves the capabilities we need without the government holding this bulk data.”
FISC has now approved the proposal that, unless there is a “true emergency,” the collected telephony metadata can be mined only after the court itself has determined there is a “reasonable, articulable suspicion” of international terrorism. Previously, that determination of reasonableness was being made by the agency itself.
Additionally, any query into the metadata is now limited to extending only “two hops” from the targeted information — think of it as degrees of separation — instead of the previous three, thus narrowing the scope.
Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, told news media after the court’s approval of the changes that, while he is “glad” the administration is imposing some safeguards, the collection program must be more than reformed. “We should shut it down,” the senator said.
Leahy isn’t the only one who thinks that way. In fact, the independent, Obama-appointed NSA review panel also made such a recommendation. It urged that “the government should not be permitted to collect and store all mass, undigested, nonpublic personal information about individuals to enable future queries and data-mining for foreign intelligence purposes.”
The panel’s recommendation is the government should not store bulk telephony meta-data, but instead it should be held by private providers or a private third party, accessible only through a FISC order. The NSA has protested that storing the data outside of the agency could delay an investigation.
But what protects the public from the searching eye of the private parties? If a private party is holding the data, is the government controlling it? How does the NSA conduct its searches without holding the data?