January 19

Overhauling collection of phone records is largely out of Obama’s hands

The president avoided major action on the practice of sweeping up billions of phone, email and text messages from across the globe.

By Ellen Nakashima
The Washington Post

And Greg Miller

WASHINGTON — President Obama’s effort to reassure the nation that the government’s practice of amassing the private phone records of millions of ordinary Americans can be responsibly reformed faces a tangle of technical, logistical and political problems that will make solutions elusive. And largely beyond his control.

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President Obama talks about National Security Agency surveillance Friday at the Justice Department in Washington.

The Associated Press

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Among the challenges is stiff resistance from phone companies that do not want to be told how long to hold their customers’ data if the government does not collect it, especially if that means longer than they do now.

The companies do not have the data-sifting capabilities of the National Security Agency, which holds the records and uses them to sift for terrorist connections.

The political challenges may be particularly daunting. The president says he wants to move the data out of the government’s hands. That has positioned him between two extremes. At one end is a collection of tea party Republicans and civil liberties Democrats who want the government to end its bulk collection of Americans’ records, not just shift where the data are stored. At the other end are powerful lawmakers, including the chairmen of the intelligence committees, who have resisted any substantial changes.

Obama has ordered Attorney General Eric Holder Jr. and Director of National Intelligence James Clapper to devise a plan by March 28. But many in the administration have their eyes on a more significant date: In June 2015, the law that authorizes the bulk collection is due to expire, and officials say there is little prospect of renewing that authority amid the public backlash triggered by the exposure of U.S. surveillance programs by former intelligence contractor Edward Snowden.

“Congress’s deadline hangs over all of this,” said one administration official who was not authorized to discuss the matter and spoke on the condition of anonymity.

The official was referring to the pending expiration of Section 215 of the USA Patriot Act, the law that underpins the program. 

Using the Section 215 authority, the NSA harvests billions of records daily from phone companies about Americans’ calls: the numbers dialed, and the lengths and times of calls. But the agency does not receive the call content. It stores the “metadata” for five years in an effort to map links to al-Qaida and affiliates by running the numbers of suspected terrorists against the database.

LAWMAKERS SKEPTICAL

In a speech Friday, Obama said that this capability could be useful in a crisis. “For example, if a bomb goes off in one of our cities and law enforcement is racing to determine whether a network is poised to conduct additional attacks, time is of the essence,” he said. “Being able to quickly review telephone connections to assess whether a network exists is critical to that effort.”

But some lawmakers are skeptical. They say the intelligence community has not established that the program helped thwart a terrorist attack. That assessment was shared by a White House-appointed review group, which recommended last month that the NSA database be shifted out of the government’s hands.

Some also consider collecting and searching sensitive data on citizens who have not been accused of wrongdoing a violation of the Fourth Amendment, which bars unreasonable searches.

“The very act of bulk collection of private data is undermining Americans’ constitutional rights,” Sen. Ron Wyden, D-Ore., said in an interview Saturday. “I think bulk collection constitutes a federal human relations database. When you know who somebody calls, and when they called, that really violates people’s rights.”

Wyden, a member of the Senate Intelligence Committee who has co-sponsored legislation that would end the program, said he made that point to senior White House officials Friday night. “They are very much aware of the concerns, and this is one of the reasons that the president said more work is going to be done,” he said.

(Continued on page 2)

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