Score one for Edward Snowden -- and for the NSA.
On Monday, the Obama administration began unveiling its plan to end the spy agency's collection of millions of Americans' phone records. That will effectively close out the most controversial NSA spying program that Snowden had exposed, and the former contractor wasted little time claiming credit.
"I believed that if the NSA's unconstitutional mass surveillance of Americans was known, it would not survive the scrutiny of the courts, the Congress, and the people," Snowden said in a statement Tuesday issued through the American Civil Liberties Union, which handles his legal representation. "This is a turning point, and it marks the beginning of a new effort to reclaim our rights from the NSA and restore the public's seat at the table of government."
Had Snowden not disclosed the program's existence, it would almost certainly be going strong today. The plan to end the collection of telephone metadata "is yet further vindication for Edward Snowden in particular, and for transparency more generally," David Cole, a professor at the Georgetown University Law Center, wrote on the blog Just Security. "The only reason the president is proposing this change is because, once the program became public, it was unsustainable in its current form."
Snowden isn't the only winner, though. The NSA, his biggest adversary, has notched a big victory as well. Under the administration's plan, which closely tracks a bill put forward Tuesday by the NSA's overseers in the House of Representatives, the NSA will still be able to siphon communications from undersea cables. It will still be able to read people's email, including those of Americans if it obtains a warrant. The hoovering up of foreign communications, which unavoidably rakes in those of some innocent Americans, will continue.
The one thing that will end is the NSA's mass collection of phone data. Even there, though, the agency will still have the ability to access the phone records of suspected terrorists by serving telecommunications companies with a court order. The phone companies won't have to retain the records any longer than they already do under federal regulations, which is generally about 18 months. But intelligence officials say that older records tend to be less useful anyway. Judicial mediation may slow down the process of analyzing those records, but the NSA will still have access to them. Considering this is the only major surveillance program the agency has lost in the wake of the Snowden leaks, the spies at Fort Meade got off easy.
After the phone records program was revealed in June, officials insisted it had helped foil more than 50 terrorist plots. They later backed down from those assertions, ultimately conceding that they couldn't point to a single plot that the program had definitively stopped.
"The [phone records] program was just not as important as other programs," said Michael Vatis, a former senior official in the Justice Department and the FBI who worked on national security and intelligence programs and served on an influential task force about government surveillance. "That's not to say it's unimportant. But given all the criticism, this program was one the administration was willing to significantly alter."
By contrast, the NSA's Prism program, which collects Internet communications from at least nine major U.S. tech companies, produces far more intelligence -- officials say it's the single largest contributor to President Obama's daily national security briefing. The administration has shown no willingness to change Prism or to scale back the NSA's collection of Americans' email and phone conversations overseas pursuant to an executive order. None of those programs -- which mostly target foreigners' communications -- are on the chopping block, as the phone records program has been ever since Obama announced his intentions to roll it back in January.
The NSA, in other words, can breathe easy: Surveillance is here to stay. The CEOs of six major American high-tech companies, whose foreign customers are frequently the target of NSA surveillance, met with Obama at the White House for two hours on Friday to discuss potential changes to programs other than the phone records collection effort. They came away disappointed.
"While the U.S. government has taken helpful steps to reform its surveillance practices, these are simply not enough," Facebook said in a statement. The company is one of those that's been identified in leaked NSA documents as being part of the Prism program, along with Google, Microsoft, Apple, and five others. "People around the globe deserve to know that their information is secure, and Facebook will keep urging the U.S. government to be more transparent about its practices and more protective of civil liberties."
In light of the administration's concessions on phone records, civil liberties groups are geared up for the next round of battle. "I think this is only the beginning of a multiyear fight over the appropriate scope of the government surveillance authority," said Kevin Bankston, the policy director for the Open Technology Institute, which has opposed several NSA surveillance activities.
In the near term, that fight will center on the role of the judicial branch in approving the government's requests for access to the phone records. The administration's plan would have each query approved by the Foreign Intelligence Surveillance Court, the body that has the most experience reviewing government spying.
But a bill proposed Tuesday by Reps. Michael Rogers (R-Mich.) and C.A. "Dutch" Ruppersberger (D-Md.), the chairman and ranking member of the House Intelligence Committee, would allow the government to direct phone companies to turn over their records. The surveillance court would get involved on the front end, approving "selection procedures" to ensure the government was only gathering information associated with terrorists and other valid foreign intelligence targets. The government would also have to submit the evidence supporting its request to the court -- but only after it was collected.
The role of judges is becoming the flashpoint in crafting a final resolution to the phone records program. But the two sides are coming together. In a press conference Tuesday, the lawmakers emphasized that their proposal was for the most part closely aligned with the administration's plan. Rep. Adam Schiff (D-Calif.), who earlier this year introduced his own bill to restructure the NSA program, called the White House plan "a very important step forward toward reform" and said it would protect Americans' privacy interests while still allowing intelligence agencies to gather the information they need "to gather the vital information they need to protect the public." The path is clearing for Rogers and Ruppersberger.
Key senators are also coming around to the White House proposal. Mark Udall (D-Colo.), one of the most steadfast opponents of the NSA, and Dianne Feinstein (D-Calif.), the chair of the Senate Intelligence Committee, both signaled their general approval of the administration's plan to keep the records housed at phone companies and said they were ready to work with the House and the administration to iron out the details.
There is a third proposal on the table, a bill that would go farther than the other two by banning all forms of bulk data collection on Americans, including financial and business records, and requiring that any records requests be made pursuant to an investigation. That's a far higher standard to meet than the "reasonable articulable suspicion" that the NSA currently uses to query the records of Americans whom might be tangentially connected to terrorism.
The bill has broader support among civil liberties advocates than the White House proposal or the Rogers and Ruppersberger legislation. But its prospects are already looking dim. On Tuesday, one of the bill's cosponsors, Rep. John Conyers (D-Mich.), signaled that he was looking for some common ground with the White House and House lawmakers. Conyers praised Obama's "commitment to ending bulk collection and reining in dragnet surveillance programs." And he said Rogers and Ruppersberger had "also joined the consensus that bulk collection of telephone metadata must end."
Ending that bulk collection is precisely the outcome that Snowden had hoped to bring about when he disclosed the program in June 2013. And while opponents of the phone records program said important details remain to be sorted out -- including the role of judges in approving surveillance orders and how broadly the prohibition on bulk records collection will be applied -- it was clear that a consensus had formed around ending the phone records program in its current form. That becomes the starting point for the next phase of debate, but it's also a finish line for the previous one.
John Hudson contributed reporting.
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