Last year, Edward J. Snowden, a former N.S.A. contractor outlined the existence of a massive effort by the U.S. National Security Agency to track cell phone calls and monitor the e-mail and Internet traffic of virtually all Americans. The secret call records program — known as the “215 Program”, after Section 215 of the Patriot Act — was part of the secret surveillance program that President George W. Bush unilaterally put in place after the terrorist attacks of Sept. 11, 2001.
In 2006, as part of a broader Bush administration effort to counteract terrorism, the Justice Department persuaded the Foreign Intelligence Surveillance Court (also known as the FISA Court) to begin authorizing the program. It claimed that Section 215, which allows the F.B.I. to obtain court orders for business records deemed “relevant” to an investigation, could be interpreted as allowing the N.S.A. to systematically collect domestic calling records in bulk, as potentially relevant to some ongoing investigations. The government lauded the usefulness of the tool although it was unable to point to any thwarted terrorist attacks that would have been carried out if the program had not existed.
The details of the program exposed by Snowden created a great deal of debate and consternation nationally and internationally, with the Obama administration receiving a great deal of criticism for allowing such a wholesale intrusion on privacy rights. Shortly thereafter, President Obama decided to appoint a review group and an independent federal privacy watchdog to review the program. They both concluded that major changes to the program were needed; the latter also indicating that the bulk collection was illegal, rejecting the government’s Patriot Act interpretation.
Last week the Obama administration announced that it is preparing to unveil a legislative proposal for a far-reaching overhaul of the National Security Agency’s once-secret bulk phone records program in a way that — if approved by Congress — would stop the collection the information, known as metadata, which lists millions of phone calls made in the United States.
Under the new proposal, the government would have to get permission from the FISA Court to review data about the time and duration of telephone calls that it believes may be connected to terror attacks. The bulk records would stay in the hands of phone companies, which would not be required to retain the data for any longer than they normally would. The N.S.A. could still obtain specific records, but only with permission from a judge, using a new kind of court order. The new plan would also allow the government to swiftly seek related records for callers up to two phone calls, or “hops,” removed from the number that has come under suspicion, even if those callers are customers of other companies.
Although some have expressed concern over how the records would be handled by employees at the telephone companies who might be asked to search the data in response to a government request, it is expected that safeguards would be put in place to avoid breaches of privacy.
Most critics of the old bulk data collection program think that this new initiative is a step in the right direction on the protection of privacy rights, and a compromise that still allows the government important investigative tools while decreasing the opportunity for abuse.