Tuesday, March 25, 2014

Overhaul of NSA Data Collection Takes Shapes


Overhaul of NSA Data Collection Takes Shape

Plans From House Committee and Obama Administration Call for Searching Data at Phone Companies Instead

Updated March 25, 2014 12:26 a.m. ET

WASHINGTON—Leaders of the House Intelligence Committee are set to unveil Tuesday a proposal overhauling the National Security Agency's phone-records program by requiring searches to be conducted at phone companies instead of having the NSA compile the records.

The bipartisan proposal is similar to one floated last month by the NSA's departing director. It has been well received by some telecommunications-industry executives, but likely will run into opposition from lawmakers of both parties who are sponsoring a competing proposal.

The Obama administration is readying its own proposal to restructure the program, which officials said would be conducted at phone companies, as well.

The proposals from the Obama administration and the House Intelligence Committee are strikingly similar, except the White House would prefer to have a judge approve each data search before as opposed to after the fact, officials said.

President Barack Obama in January set a deadline of March 28 for intelligence and law-enforcement officials to provide proposals for restructuring the phone program, which collects millions of U.S. phone records a year.

The court order authorizing the current NSA phone program, however, expires at 5 p.m. Friday. The administration will renew it as it stands now until Congress passes new legislation, a senior administration official said.

The bill from Intelligence Committee Chairman Mike Rogers (R., Mich.) and his Democratic counterpart, Rep. C.A. "Dutch" Ruppersberger (D., Md.), would ban so-called bulk collection of phone, email and Internet records by the government, according to congressional aides familiar with the negotiations. In its place, it would outsource the database queries to phone firms.

"The public feels very strongly that the NSA was infringing on their civil liberties. That was not the case," Mr. Ruppersberger said in an interview. Still, he said, the bill is needed to restore public trust and add "checks and balances" to the phone-data program.

A U.S. official said the approach would cover both landline and cellphone records, and would be more "comprehensive" than the current NSA program, which doesn't cover most cellphone data. It currently covers calling data, such as numbers called, on roughly 20% of U.S. phone calls, The Wall Street Journal reported last month, but doesn't record conversations.

The bill would require the secret national security court known as the Foreign Intelligence Surveillance Court to approve the new program and re-approve its structure annually. The court's order would require phone companies to comply.

Currently, the NSA gets massive numbers of phone records in bulk from three phone companies and conducts searches of them based on numbers it suspects are related to terrorism, under a standard it calls "reasonable articulable suspicion."

Under the new bill, a phone company would search its databases for a phone number under an individual "directive" it would receive from the government. It would send the NSA a list of numbers called from that phone number, and possibly lists of phone numbers those numbers had called. A directive also could order a phone company to search its database for such calls as future records come in.

The NSA would send a copy of each directive to the surveillance court for review after records collection has begun, and companies could object to a specific directive. That approach differs from the requirement set by Mr. Obama in January in which he instituted a system that requires a court order to search the NSA's database against a particular phone number. That change went into effect in February.

The Wall Street Journal reported last month that the Justice Department provided the White House with four options for restructuring the program: rebuilding the program with data housed at the phone companies; housing the data at a government agency other than the NSA; housing the data at a third party; and scrapping the program altogether and obtaining data though other investigative means.

Mr. Ruppersberger said he had spoken with senior White House officials and they agreed with concepts like ending key types of bulk-data collection, but had some concerns, such as the after-the-fact judicial review of the directives. The White House declined to comment.

Mr. Ruppersberger said waiting days to obtain court approval won't work. "You can't gather intelligence that way," he said. "It takes too long."

The bill's setup, Mr. Ruppersberger said, has been "vetted" by the NSA, and officials there said the proposal would work.

Telecommunications executives reacted similarly, noting that the bill wouldn't require them to retain data longer than they already do and would provide liability protection and reimbursement for expenses.

"From what we've seen, we're good with it," said one. But the executive wondered whether it would go far enough in providing privacy protections to win over critics.

A competing bipartisan bill drafted by House Judiciary Committee member James Sensenbrenner (R., Wis.) would ban all bulk-records collection, including financial records and any other type of business records. It also would require a judicial order be obtained for any request for phone or other records and that it be connected to an ongoing international terrorism investigation.

The House intelligence committee bill doesn't require a request be part of an ongoing investigation, Mr. Ruppersberger said, because intelligence probes aim to uncover what should be investigated, not what already is under investigation.

Write to Siobhan Gorman at siobhan.gorman@wsj.com

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