The plan has several points, starting with the central provision, which ends the ability of the government to collect telephone records in bulk at all; rather, that function will be replaced by the ability to query phone companies for specific information relevant to national security. The queries would be for phone records that telephone companies currently already retain for 18 months for billing purposes.
Absent an emergency situation, the government would need to obtain approval from the Foreign Intelligence Surveillance Court (FISC) to submit a query for specific numbers, on an individual basis. Also, the records provided to the government in response to queries would only be within two hops of the selection term being used, instead of the three used today. And, the government’s handling of any records it acquires will be governed by minimization procedures approved by the FISC.
To offer assurance to the national security folks, the plan also calls for the court-approved numbers to be able to be used to query the data over a limited period of time without returning to the FISC for approval, and the production of records would be ongoing and prospective. Phone companies would also be compelled by court order to provide technical assistance to ensure that the records can be queried and that results are transmitted to the government in a usable format and in a timely manner.
Legislation will be needed to implement the President’s proposal, so the President has directed the DOJ to seek from the FISC a 90-day reauthorization of the existing program, which would have expired on Friday. As Congress mulls the possible changes, the Administration said that it has been in consultation with congressional leadership and members of the Intelligence and Judiciary Committees already.
The proposal is the culmination of a promise made earlier in the year: On January 17, President Obama gave a speech at the Department of Justice in which he ordered a transition that would end the Section 215 bulk telephony metadata program. He then instructed the Attorney General to develop options for a new program that could match the capabilities and fill the gaps that the Section 215 metadata program was designed to address without the government holding the information. The President further instructed the Attorney General to report back to him with options for alternative approaches. The White House also said that it “consulted with Congress, the private sector, privacy and civil liberties groups, and other interested groups.”
Earlier in the week, Rep. Mike Rogers, the Republican chairman of the House Intelligence Committee, and Rep. Dutch Ruppersberger, the panel's top Democrat, unveiled the FISA Transparency and Modernization Act, which essentially mirrors the Obama proposal.
The bill, co-sponsored by six Republicans and three Democrats, would end bulk collection and require that the NSA seek court approval before accessing service provider records, with the burden of demonstrating that there is a "reasonable and articulable suspicion” for doing so. The Intelligence Committee bill would also prohibit the bulk collection of other records, such as Internet data, library records or medical data, not just telephone information.