3:05 PM EDT, March 25, 2014
Having conducted a months-long review of the issue, President Obama reportedly will soon announce a proposal to end the National Security Agency's bulk collection of data about Americans' phone calls and require the agency to get a court order before seeking such information in the future.
But putting limits on the agency's capacity to spy on Americans may not be as easy as it sounds, especially if the Foreign Intelligence Surveillance (FISA) Court which is supposed to rule on the legality of NSA programs, continues to rubber-stamp its approval of every request the agency apparently makes. Since the cases the court hears, its deliberations and the decisions it makes are all secret, there's no way for the public to know whether it's really keeping the NSA operating within the law or just making its snooping a little less illegal.
In January, Mr. Obama said he wanted to allow the agency to retain its ability to monitor the communications of suspected terrorists while ending the bulk collection of data on virtually every American's private phone calls. The NSA's secret bulk data collection program, which was uncovered by CIA leaker Edward Snowden last year, involves millions of records of so-called "metadata" — information about who is calling whom, from where and for how long — but not the actual content of the messages themselves.
However, since the metadata can be used to track not only a person's calling habits, but also his or her affiliations, purchases, movements and location, among other things, the program has rightly been criticized by civil liberties groups as a possible violation of citizens' Fourth Amendment right to privacy. The agency says it doesn't listen to the communications it monitors, but even without that information it can create a remarkably accurate profile of an individual's interests, activities, finances and network of personal, family and business contacts.
It's unclear how far the president's proposal would go toward addressing those concerns. Under Mr. Obama's plan, the NSA would stop collecting and storing such "metadata" itself and instead leave that function up to the telephone companies, which wouldn't be required to keep the information longer than the 18 months currently required under federal law. If the agency wanted to examine specific records related to a caller that has come under suspicion, it would have to get a judge on the FISA court to issue a new type of order requiring the companies to expedite the agency's access to that data and allowing it to seek records of callers up to two steps removed from the number for which the original request was made.
The NSA insists that it needs access to massive amounts of electronic data in order to analyze calling patterns that might be linked to suspected terrorists both in the U.S. and overseas. But limiting the agency's authority to directly monitor and store such data might not make much difference if it can secretly hack into the records held by telephone companies without their knowledge or if the new orders issued by the FISA court are so expansive that the NSA ends up with the same or greater access to call data that it now enjoys. The problem with holding an agency that operates in secret accountable always comes down to a question of who will watch the watchers.
If the FISA court is the only institution with the authority to keep the NSA operating within the law Americans may indeed have reason to feel uneasy. Given the unhappy experience of other regulatory bodies, it's all too easy to image the court becoming a captive of the agency it's supposed to be overseeing, if it hasn't already. Congress is ultimately responsible for making sure the NSA remains accountable to the nation's civilian leadership, but until Mr. Snowden's revelations it seemed perfectly content to let the agency do whatever it wanted as long as it was in the name of national security.
Several lawmakers, including Maryland Rep. C.A. Dutch Ruppersberger, who sits on the House Intelligence Committee, have recently offered plans similar to the president's for reining in the NSA. Those measures, along with Mr. Obama's proposals, are probably a step in the right direction toward making the agency more transparent. Unfortunately it may take years — and possibly another leak on the order of Mr. Snowden's revelations — before we know how effective they really are.
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