Obama is cancelling the NSA dragnet. So why did all three branches sign off? The House's NSA bill could allow more spying than ever. You call this reform?Obama to set out proposal to end NSA's mass collection of phone data. / The Guardian.

Obama said at a speech in January that he wanted to dial down the NSA's bulk collection. Is his proposal a signal that the agency's surveillance activities lack democratic legitimacy? Photograph: Charles Dharapak / AP

Obama is cancelling the NSA dragnet. So why did all three branches sign off?

Well, at least the phone part of the dragnet. Here's hoping it's the end of laws of the spies, by the spies and for the spies

Jameel Jaffer, American Civil Liberties Union

theguardian.com, Tuesday 25 March 2014 14./ http://www.theguardian.com/commentisfree/2014/mar/25/obama-nsa-dragnet-phone-proposal-sign-off

To anyone who criticized the National Security Agency's phone-records dragnet over the last nine months or so, the American intelligence community had this stock response: all three branches of government signed off on it.

The intelligence community was right, at least in a sense, but what it presented as a defense of the surveillance program was actually an indictment of our oversight system. What it presented as a defense of the program was actually a scandal.

In today's New York Times, Charlie Savage reports that the administration has come to the belated realization that its intelligence interests can be accommodated without placing hundreds of millions of people under permanent surveillance. This is to the good, of course. But if the administration is right that the dragnet was unnecessary, we should ask how all three branches of government got it so wrong.

The answer, in a word, is secrecy. When intelligence officials proposed the dragnet, there was no one on the other side to explain that the government's goals could be achieved with less-intrusive means. There was no one there to mention that the law the government was invoking couldn't lawfully be used to collect call-records. There was no one there to mention that the bulk collection of call records was unconstitutional.

Instead, there was an entirely one-sided system in which government attorneys presented the supposed interests of the intelligence community in the most expansive way possible, and the judges of a poorly resourced court tried unsuccessfully, and sometimes halfheartedly, to imagine what ordinary citizens might say in response. Over time, and perhaps without entirely meaning to, the court developed a wholly new body of law, a body of law animated not by democratic principles but by the values of the intelligence community – collect, analyze, conceal.

The intelligence committees that were meant to serve as a further check on unwarranted government surveillance failed just as profoundly. They allowed the intelligence community to launch dragnet programs when narrower programs would have been equally effective. They allowed it to mislead the public about the scope of its surveillance activities. They allowed it to pretend that the government's surveillance technology was directed at suspected terrorists abroad when in fact it was directed at ordinary citizens.

One can confidently predict that the administration's proposal to end the NSA's bulk collection of phone records will not go far enough. According to the Times report, the administration's proposal will still have the NSA collecting records about people who are two steps removed from terrorism suspects, not just records about the terrorism suspects themselves. The administration doesn't seem to be contemplating new limits on the agency's authority to retain, analyze or disseminate the records it collects. And it isn't proposing to end bulk collection of all records – just the bulk collection of phone records. And of course Congress must approve the proposal.

But, as David Cole has observed, this much can be said about the administration's proposal already: the president is acknowledging that a surveillance program endorsed by all three branches of government, and in place for more than a decade, has not been able to survive public scrutiny. It's an acknowledgement that the intelligence agencies, the surveillance court and the intelligence committees struck a balance behind closed doors that could not be defended in public.

The question now is whether the administration's proposal with respect to the phone-records program signals a broader recognition that many of the NSA's surveillance activities lack democratic legitimacy. The truth is that there is a vast distance between what the American public has approved and what the NSA is actually doing. The proposal to end the phone-tracking program is, we can hope, a sign that the administration now sees this.​

When Rep Mike Rogers claims a bill does something particular – like, say, protect your privacy – it's a fairly safe assumption that the opposite will end up true. Photograph: Chris Usher / AP

The House's NSA bill could allow more spying than ever. You call this reform?

Congress' serial fabricator has the audacity to call his new law the 'End Bulk Collection Act'. Obama's proposal isn't much better

Trevor Timm

theguardian.com, Tuesday 25 March 2014 / http://www.theguardian.com/commentisfree/2014/mar/25/house-nsa-bill-end-bulk-collection-act-reform

The White House and the House Intelligence Committee leaked dueling proposals last night that are supposedly aimed at ending the mass collection of all Americans’ phone records. But the devil is in the details, and when it comes to the National Security Agency’s unique ability to twist and distort the English language, the devil tends to wrap his horns around every word.

The House proposal, to be unveiled this morning by Reps Mike Rogers and Dutch Ruppersberger, is the more worrying of the two. Rogers has been the NSA’s most ardent defender in Congress and has a long history of distorting the truth and practicing in outright fabrication, whether in touting his committee’s alleged “oversight” or by way of his attempts to impugn the motives of the once again vindicated whistleblower who started this whole reform debate, former NSA contractor Edward Snowden.

As a general rule, whenever Mike Rogers (not to be confused with incoming NSA director Michael Rogers) claims a bill does something particular – like, say, protect your privacy – it's actually a fairly safe assumption that the opposite will end up true. His new bill seems to have the goal of trading government bulk collection for even more NSA power to search Americans’ data while it sits in the hands of the phone companies.

While the full draft of the bill isn’t yet public, the Guardian has seen a copy, and its description does not inspire confidence. Under the Rogers and Ruppersberger proposal, slyly named the “End Bulk Collection Act”, the telephone companies would hold on to phone data. But the government could search data from those companies based on "reasonable articulable suspicion" that someone is an agent of a foreign power, associated with an agent of a foreign power, or "in contact with, or known to, a suspected agent of a foreign power". The NSA’s current phone records program is restricted to a reasonable articulable suspicion of terrorism.

A judge would reportedly not have to approve the collection beforehand, and the language suggests the government could obtain the phone records on citizens at least two “hops” away from the suspect, meaning if you talked to someone who talked to a suspect, your records could be searched by the NSA. Coupled with the expanded “foreign power” language, this kind of law coming out of Congress could, arguably, allow the NSA to analyze more data of innocent Americans than it could before.

President Obama’s reported proposal sounds more promising, though we have even fewer details than the Intelligence Committee proposal. The administration’s plan would supposedly end the collection of phone records by the NSA, without requiring a dangerous new data retention mandate for the phone companies, while restricting analysis to the current rules around terrorism and, importantly, still requiring a judge to sign off on each phone-record search made to the phone companies – under what the New York Times described as "a new kind of court order".

This phone plan, apparently, represents Obama coming full-circle as his self-imposed deadline on NSA reform arrives Friday, when the court order authorizing bulk collection runs out. But there’s no indication that the president's plan would stop other types of bulk collection – such as internet or financial records – and there’s still a big question about what the NSA could do with the data they receive on innocent people two "hops" away from a suspect.

Critically, neither proposal touches the NSA’s under-reported and incredibly dangerous “corporate store”, at least that we know of. For years, the NSA has been allowed to search phone numbers up to three “hops” away from suspect, so long as it had “reasonable articulable suspicion” that the suspect was involved in terrorism. This was recently ratcheted down to two hops, but the hop-scotching method inevitably pulled millions of innocent people into the NSA’s dragnet.

The NSA insisted the database was only used for that sole purpose of monitoring someone within a couple degrees of separation from a suspect. However, it was only revealed recently that the NSA then dumps all of those numbers and connections – even those three hops away – into another database called “the corporate store”, where the NSA can do further analysis of your information and doesn't need “reasonable articulable suspicion” for anything. The Foreign Intelligence Surveillance Court has also exempted the corporate store from audit requirements about how often the vast database is searched.

The American Civil Liberties Union puts it like this:

If, for some reason, your phone number happens to be within three hops of an NSA target, all of your calling records may be in the corporate store, and thus available for any NSA analyst to search at will.

This is bulk collection at its worst, and these new reforms aren't nearly good enough.

Rep James Sensenbrenner’s bill, the USA Freedom Act, would make a much stronger and more comprehensive bill than either new proposal – at least for those interested in real NSA reform. Sensenbrenner, who originally wrote the Patriot Act provision that the NSA re-interpreted in secret, called the House Intelligence proposal "a convoluted bill that accepts the administration's deliberate misinterpretations of the law". Although, even his bill could be strengthened to ensure bulk collection of Americans' records is no longer an option for the NSA, or any other government agency.

In the end, there's a simple way to stop all forms of bulk collection and mass surveillance: write a law expressly prohibiting it.

The bill would makes it easier for authorities to collect metadata on individuals inside the US suspected of involvement with a foreign power. Photograph: Felix Clay

Obama to set out proposal to end NSA's mass collection of phone data

Administration plan would require NSA to seek a court order to search phone records held by telecoms companies

Spencer Ackerman in Washington

theguardian.com, Wednesday 26 March 2014 / http://www.theguardian.com/world/2014/mar/25/nsa-house-bill-bulk-phone-data-collection-end

The Obama administration is to set out how it proposes to end the mass collection of Americans' phone call data this week, as legislators in the House of Representatives prepare to unveil a bill that would significantly curtail the practice but lower the legal standards for the collection of such information.

Under plans to be put forward by the Obama administration in the next few days, the National Security Agency would end the bulk collection of telephone records, and instead would need to seek a court order to search records held by the telephone companies.

A separate proposal, to be published on Tuesday by the leaders of the House intelligence committee, would not necessarily require a judge's prior approval to access phone or email data.

Neither the White House nor the House intelligence committee proposal would require telecommunications firms to keep such records any longer than the current 18-month maximum, a significant shift away from the five years during which they are currently held by NSA. The moves represent a significant overhaul of the secret mass collection practices of the past 13 years, exposed by whistleblower Edward Snowden.

The House bill is the result of a shift in position by two of the most stalwart congressional defenders of bulk collection, the committee's Republican chairman Michael Rogers of Michigan and Democrat Dutch Ruppersberger of Maryland.

The bill, titled the End Bulk Collection Act of 2014 and currently circulating on Capitol Hill, would prevent the government from acquiring "records of any electronic communication without the use of specific identifiers or selection terms," some 10 months after the Guardian first exposed the bulk collection based on leaks by the whistleblower Edward Snowden.

But the bill would allow the government to collect electronic communications records based on "reasonable articulable suspicion", rather than probable cause or relevance to a terrorism investigation, from someone deemed to be an agent of a foreign power, associated with an agent of a foreign power, or "in contact with, or known to, a suspected agent of a foreign power."

A draft of the bill acquired by the Guardian proposes the acquisition of such phone or email data for up to a year and would not necessarily require prior approval by a judge. Authorisation of the collection would come jointly from the US attorney general and director of national intelligence.

The NSA or the FBI would not be able to collect the content of those communications without probable cause.

Nor does the House intelligence committee's draft bill require phone companies or any other private entity to store bulk phone records on behalf of the NSA – a proposal that has met with stiff opposition from the telecommunications companies. In essence, the draft bill gets rid of bulk collection, but makes it easier for government authorities to collect metadata on individuals inside the US suspected of involvement with a foreign power.

The House intelligence committee proposal represents competition to a different bill introduced last fall by privacy advocates in the Senate and House judiciary committees known as the USA Freedom Act. That bill, which has 163 co-sponsors in both chambers, does not lower the legal standard for data collection on US persons, and would prohibit the NSA from searching for Americans' identifying information in its foreign-oriented communications content databases, something the House intelligence bill would not.

A spokesperson for the House intelligence committee did not immediately respond to a request for comment on Monday. Rogers and Ruppersberger have scheduled a press conference on Tuesday morning to discuss what they described in a release as "Fisa improvement legislation" – a reference to the seminal Foreign Intelligence Surveillance Act of 1978, which their bill would amend.

While a judge would not necessarily review the collection of a US individual's phone or email records ahead of time, the House intelligence committee bill would require judicial review of the collection procedures and associated privacy protections to "reasonably limit the receipt, retention, use and disclosure of communications records associated with a specific person when such records are not necessary to understand foreign intelligence information or assess the importance of such information".

A telecom or internet service provider could challenge the collection order before the secret Fisa court under the House intelligence committee proposal. The court would also have latitude to reject challenges "that are not warranted by existing law or consists of a frivolous argument for extending, modifying or reversing existing law or for establishing a new law", and to impose contempt of court penalties for noncompliant companies.

The attorney general and the director of national intelligence would have to "assess compliance with the selection and the civil liberties and privacy protection procedures" associated with the collection every six months, and submit those assessments to the Fisa court and the intelligence and judiciary committees of the House and Senate.

Additionally, and in keeping with an October proposal from Senate intelligence committee chairwoman Dianne Feinstein of California, the House intelligence committee proposal would permit the NSA to continue surveillance for 72 hours on a suspected foreigner's communications content if that person enters the US.

The House intelligence committee proposal contains provisions embraced by critics of widespread NSA surveillance. It would create a privacy advocate before the Fisa çourt; mandate additional declassification of Fisa court rulings; require the Senate to confirm the NSA director and inspector general.

It also requires annual disclosure of the number of times "in which the contents of a communication of a United States person was acquired under this Act when the acquisition authorized by this Act that resulted in the collection of such contents could not reasonably have been anticipated to capture such contents."

But in a sign of the continuing contentiousness on Capitol Hill over changes to NSA surveillance, James Sensenbrenner, a Wisconsin Republican and co-author of the USA Freedom Act, preemptively rejected the House intelligence committee proposal, calling it "a convoluted bill that accepts the administration's deliberate misinterpretations of the law.

"It limits, but does not end, bulk collection. Provisions included in the draft fall well short of the safeguards in the USA Freedom Act and do not strike the proper balance between privacy and security," Sensenbrenner said in a statement late on Monday.

On Friday, the Obama administration and the intelligence agencies will face the expiration of a Fisa court order for bulk domestic phone records collection. That expiration represents a deadline imposed by Obama in January for his administration to come to reach consensus on the specific contours of post-NSA phone metadata collection.

According to a New York Times report late on Monday, Obama will propose ending bulk phone data collection and replacing it with individualised orders for telecom firms to provide phone records up to two "hops" – or degrees of separation – from a phone number suspected of wrongdoing. The effort goes further towards the position favoured by privacy advocates than Obama proposed in January. Obama will request the Fisa court approve the current bulk collection program for a final 90-day renewal as he attempts to implement the new plan.

A senior White House official cited a January speech by Obama in which he announced some limits on NSA surveillance. The official told the Guardian: "In the coming days, after concluding ongoing consultations with Congress, including the intelligence and judiciary committees, will put forward a sound approach to ensuring the government no longer collects or holds this data, but still ensures that the government has access to the information it needs to meet the national security needs his team has identified.

"Until Congress passes new authorizing legislation, the president has directed his administration to renew the current program, as modified substantially by the president in his January speech."