Under the president’s proposal, the government would no longer collect call data in bulk but would be allowed to ask for it from phone companies with court approval, and only for numbers linked to terrorism.
But the White House proposal leaves plenty of room for reporters’ information to be caught up in the NSA’s—albeit smaller—dragnet: The government would still be allowed to collect data for numbers “two hops,” or degrees of separation, from the targeted number, down from three. And once the government has that data, there are few restrictions on what they can do with it. In other words, the proposed reforms don’t appear to do anything to address journalists’ concerns about this administration’s crackdown on national security leaks.
“Journalists are at risk if they communicate by phone with potential NSA targets—or even if they simply talk with others who happen to speak with those targets,” said Patrick C. Toomey, an attorney with the American Civil Liberties Union’s National Security Project, in an email.
For example, Katherine Hawkins, a researcher who has studied Guantanamo Bay prison, noted in August that it was no stretch of the imagination to think that former Guantanamo detainees might be NSA targets. The relatively small community of lawyers, rights activists, and any of the journalists who cover Guantanamo Bay (myself included) would then be easily within “two hops,” even if they’ve never spoken to the target.
Obama’s proposed reform addresses the very first revelation published by The Guardian from the files obtained by wanted whistleblower Edward Snowden, that the NSA was using Section 215 of the Patriot Act to justify the collection and analysis of metadata—numbers, duration, location, and more, but not content—for virtually all US calls. Section 215, also known as the “business records” provision, allows the government to collect “any tangible thing” related to a foreign intelligence investigation. The government had justified the metadata program by arguing, in secret, that the entire database of US calls could be relevant to a terror investigation.
Obama’s proposal would do away with that bulk collection by the government, instead requiring the phone companies to hold the data for 18 months and allow the government to search it for specific numbers only with approval from the Foreign Intelligence Surveillance Court, which oversees intelligence collection. A bill introduced last week by the House Permanent Select Committee on Intelligence also includes the two-hop principle, but does not necessarily require court-approval and also lowers the legal standard for obtaining metadata from the companies.
There are still questions about the threshold in the White House plan. The factsheet on the reforms says that the data could be queried for “national security concerns,” but administration officials have said that the searches will be limited to numbers linked to terrorism or espionage. The House bill, by contrast, says that the data could be sought for any “agent of a foreign power” and their contacts. Neither seems to require that the number be relevant to an FBI investigation, which is the current standard.
“Whatever language you look at, terror groups, foreign power, or national security concerns, one could conclude that the government could use this language in virtually every leak investigation they have,” said Trevor Timm, executive director of the Freedom of the Press Foundation.
When asked about the implications of the president’s proposal for leak investigations, a Justice Department spokesman, Marc Raimondi, said that “We will not, and do not, use intelligence collection tools to circumvent or undermine our media policy.”
That media policy was recently updated to require special caution from investigators when dealing with media in criminal cases. The new guidelines are meant to shore up the principle that journalists should not be investigated on the basis of first-amendment-protected activities. They were issued in response to outcry at the targeting of the Associated Press and Fox News reporter James Rosen in leak investigations. They don’t apply to warrants and wiretaps from the Foreign Intelligence Surveillance Court. The Reporter’s Committee for the Freedom of the Press has called for a “fuller public explanation of how the government may be making use of journalists’ records as well as steps to protect newsgathering from the [foreign intelligence court] process.”
Raimondi, the Justice Department spokesman, said that “While robust protections and meaningful oversight already apply to the issuance of National Security Letters”—secret demands for records related to a national security investigation—“and Foreign Intelligence Surveillance Act orders, the Department of Justice will continue to review these procedures to ensure we strike the appropriate balance in use of all investigative tools.”
A lingering problem, though, is that both of the proposals for NSA reform deal with what data the NSA gets, and not what it does with it, noted Elizabeth Goitein, of NYU’s Brennan Center for Justice. Once the metadata for a targeted number and its hops are in the so-called “corporate store,” of metadata, there are few limits on how it can be used.
“As far as we know, once a journalist’s call records have been added to the corporate store, the NSA may do with them what it pleases,” said Toomey, of the ACLU.
A White House spokeswoman told the Guardian last week that the court would issue new “procedures to provide privacy protections around the use, retention, and dissemination of phone data.”
How soon these changes might come into effect is uncertain: Obama’s proposal will have to be squared with competing proposals in the House—the intelligence committee bill and the USA Freedom Act, introduced last fall in the Senate and House Judiciary committees. That bill puts more sweeping restrictions on when Americans’ data can be sought and what can be done with it. It has the backing of prominent civil libertarians in Congress, but is farther from the administration’s proposition.
In the interim, the White House says it’s continuing with the procedures it introduced in February, allowing government metadata collection but limiting queries to surveillance-court-approved, two-hop searches. Oregon senator Ron Wyden, a leading Congressional critic of the NSA, has called on the administration to stop bulk collection without waiting for legislation.