Why the N.S.A. Isn’t Howling Over Restrictions

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Apr 24, 2013
WASHINGTON — For years after the attacks of Sept. 11, 2001, even as the National Security Agency fiercely defended its secret efforts to sweep up domestic telephone data, there were doubters inside the agency who considered the program wildly expensive with few successes to show for it.

So as Congress moves to take the government out of the business of indiscriminate bulk collection of domestic calling data, the agency is hardly resisting. Former intelligence officials, in fact, said Friday that the idea to store the data with telecommunications companies rather than the government was suggested to President Obama in 2013 by Gen. Keith B. Alexander, then the N.S.A. director, who saw the change as a way for the president to respond to criticism without losing programs the N.S.A. deemed more vital.

The limits on bulk collection are the centerpiece of legislation now advancing in the House that would be the first significant response to the spying revelations by Edward J. Snowden, a former N.S.A. contractor. In addition to new restrictions on domestic data sweeps, the plan would require more transparency and introduce ostensibly independent voices into secret intelligence court proceedings.

But as one recently departed senior intelligence official put it on Friday, “This is hardly major change.”

The legislation would still leave an expansive surveillance apparatus capable of tracking vast quantities of data. Some of the most sweeping programs disclosed by Mr. Snowden, particularly those focused on international communications, would remain unaffected. The N.S.A. could continue efforts to break private encryption systems, and information about Americans could still be swept up if originating overseas.

The modest nature of the changes has split many on both edges of the debate. Some national security advocates argue that the bill strikes a reasonable balance, while others worry that even modest limits may tie the government’s hands at a time of continuing terrorist threats. Civil liberties activists are likewise divided over whether to support the measure as an improvement on existing law, even though it is flawed in their view.

“If this bill passes, the N.S.A. will continue unaddressed surveillance programs and will secretly torture the English language to devise novel justifications for spying on Americans,” said David Segal, executive director of Demand Progress, a group that has fought for more civil liberties. “We won’t even know the details until a new whistle-blower comes forward a decade or two from now.”

But groups like Human Rights Watch, the Electronic Frontier Foundation and the Information Technology Industry Council urged lawmakers to pass the bill, calling it a first step toward imposing real limits on the government’s surveillance powers.

“While we are disappointed that the bill falls short in some areas, Congress shouldn’t put off reform any longer,” said Cynthia Wong, the senior Internet researcher at Human Rights Watch. “The U.S. should show the world that it can take privacy seriously while protecting its national security in the digital age.”

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The legislation, called the USA Freedom Act and sponsored by an unusual coalition of conservative Republicans and liberal Democrats, passed the House Judiciary Committee on Thursday with overwhelming support from both parties, and it appears headed for approval by the full House. It attracted some Republican votes by increasing penalties for anyone convicted of material support for terrorism and by making it possible for intelligence agencies to keep tracking suspected terrorists for 72 hours after they enter the country before needing a warrant.

The measure faces a more uncertain future in the Senate, where a similar bill failed by two votes to overcome a filibuster last year. But because the legal authority for domestic bulk data collection expires on June 1, Congress faces a deadline that is likely to prompt it to take at least some action rather than let the program disappear altogether.

The bulk collection program, authorized under Section 215 of the Patriot Act, generated some of the fiercest criticism after Mr. Snowden revealed details about it in 2013. The N.S.A. cast the widest possible net for call data by forcing the major phone companies, under a secret court order, to pour their data directly into government computers. But what the government received was only “metadata” — phone numbers called, as well as the duration and time of calls, but not the content of the conversations.

Under the new legislation, the government would no longer be allowed to keep a database of that information and would be limited to obtaining data from the telecommunications companies when there is a “reasonable, articulable suspicion” that a “specific selection term” used to request data is associated with international terrorism, according to an analysis by the Electronic Frontier Foundation, a civil liberties advocacy group.

The foundation’s analysis said the bill “should end” the bulk collection of “everybody’s phone records.” But it pointed out that the N.S.A. could still search for records beyond telephone data with fewer restrictions. And it noted that the bill would not address warrantless collection of Americans’ international calls and e-mails under Section 702 of the Foreign Intelligence Surveillance Act amendments of 2008.

The future of the bulk collection program may have been sealed in December 2013, when a panel of experts appointed by Mr. Obama found that the program had been of minimal intelligence value and ran considerable risks of invading privacy.

“N.S.A. believes that on at least a few occasions, information derived” had “contributed to its efforts to prevent possible terrorist attacks, either in the United States or somewhere else in the world,” the report said. But the panel concluded that its review showed that the information collected under the program “was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional” court orders.

The panel recommended legislation that “terminates the storage of bulk telephony metadata by the government” and that it be held instead by telecommunications companies or some other third party, ensuring that the government gained access only when the Foreign Intelligence Surveillance Court issued an order. Although the government said nothing at the time, General Alexander, then in his last months as the head of the N.S.A., told Mr. Obama that it would be preferable if legislation were passed that moved the program to private hands.

Mr. Obama embraced the idea in a speech early last year. But the idea was never translated into action because of resistance by the telecommunications firms. “The truth is the telecoms don’t want to do it,” a senior intelligence official, who requested anonymity to discuss sensitive matters, said in a recent interview. “They want to be compelled, and they want to be paid for the service.”

The future of the legislation remains uncertain in part because of political crosscurrents and presidential politics. Senator Mitch McConnell of Kentucky, the Republican majority leader, wants simply to reauthorize the current programs that expire on June 1. But the American Civil Liberties Union and other groups argue in favor of letting the program expire temporarily and using that as leverage to ensure a more restrictive final result.

In the middle are Mr. Obama and House Speaker John A. Boehner, who have not often worked in tandem. To them, the legislation responds to Mr. Snowden without handcuffing the agency that once employed him. “Of course, it’s not everything that I want,” Mr. Boehner said this week. “But I think it’s a solid agreement.”
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