NSA hangs it up — for now
Bulk collection of phone data stops, but new program could start soon
WASHINGTON — The National Security Agency shut off its massive collection of U.S. telephone records at 11:59 p.m. EDT Sunday, shortly after a rare weekend session in the Senate failed to craft a measure to extend the program. Senators moved forward with a Housepassed bill that would reform the NSA’s surveillance program. But the new program, if adopted, couldn’t start for several days. Here’s what you need to know:
What’s the NSA doing now?
The NSA can no longer collect and store records from Americans’ phone calls. The spy agency has locked down access to the billions of phone records it has archived on government servers. The NSA won’t delete the so-called metadata, however, but has installed monitoring software designed to set off alarms if government officials try to access the data. The records include the numbers called from each phone and the length of each call, but not the conversations.
How would the new program work?
If the House bill becomes law, the NSA could ask phone companies for call data on U.S. phones that may be linked to a known terrorist or terrorist group. Those requests would be vetted by the Foreign Intelligence Surveillance Court, which operates in secret. The NSA could no longer vacuum up the phone records in bulk and would have to rely on phone companies to store the toll records. Most companies keep the records for 18 months.
When would that start?
The NSA would have six months to transition to the new method of collecting phone records. In the meantime, the NSA would be allowed to restart and use its bulk collection program. Intelligence officials said it would take several days to restart bulk collection after the president signed the bill into law. The Senate could vote on the bill, called the USA Freedom Act, as soon as Tuesday.
With the NSA program turned off, is there a higher risk of terrorism?
Depends on whom you ask. Critics say the NSA program hasn’t stopped a terrorist plot. Intelligence officials have made about 300 searches of the enormous database each year and say the results have been useful in finding links between potential suspects in terrorism and espionage investigations. For now, that access is closed off. If the Senate approves the House bill, the NSA can retroactively collect the phone records that it has missed during the hiatus.
Can phone companies refuse NSA requests for data if the House bill becomes law?
No, but some may try. The NSA would need to get an order from the Foreign Intelligence Surveillance Court to access records held by telecommunication companies. If companies refused, they could be in violation of a court order. Some companies that sell unlimited calling plans have argued they don’t need to keep toll data on customers’ calls. Intelligence officials are concerned that some companies may try to opt out so they can advertise that they don’t provide data to U.S. spy agencies.
Do intelligence officials support the proposed changes?
Yes. Director of National Intelligence James R. Clapper and Atty. Gen. Loretta Lynch told House leaders in a letter last month that the House bill “preserves the essential operational capabilities” of the NSA program. Telephone companies would receive government money and technical specifications to comply with the requirements. The NSA and the phone companies would have six months to erect the new system before they shut down the current data pipelines.
Is six months enough time?
The NSA says yes. Making the switch is achievable in six months “with provider cooperation,” NSA Director Michael S. Rogers said in a letter last month to Senate Majority Leader Mitch McConnell (R-Ky.) and Senate Minority Leader Harry Reid (D-Nev.). But McConnell and some other Republicans are not convinced. They want to extend the transition period to one year. They also want to require telephone companies to notify the government if they begin storing data for less than 18 months. “We should take some common-sense steps to ensure the new system envisioned by that legislation — a system we would soon have to rely upon to keep our country safe — will in fact work,” McConnell said on the Senate floor Monday.
Will the House agree to any changes?
Maybe. House leaders have been reluctant to tinker with the fragile bipartisan compromise achieved in their bill, but on Monday they didn’t rule out any changes from the Senate.
What else would the USA Freedom Act do?
The bill creates a panel of independent advocates for the first time to argue on matters of privacy and civil liberties before the Foreign Intelligence Surveillance Court. The court now hears only from government lawyers. The bill also requires that significant rulings from the court be made public. In addition, it allows companies and individuals to challenge the gag orders that routinely come with data demands from the government under so-called national security letters.
Did other authorities expire on Sunday?
Yes, three other provisions in the Patriot Act also expired. One made it easier for the FBI to collect business records, such as credit card and banking data, in terrorism cases. Another authorized “roving wire- taps” that permitted the FBI to eavesdrop on every phone used by a terrorism suspect without obtaining a warrant for each device. As of Monday, officials can use those powers in continuing investigations but not in new cases. The third provision was aimed at so-called lone-wolf cases. It let the FBI seek a court order to wiretap a suspect it thought was engaged in terrorist activity but who wasn’t linked to a terrorist group. All three provisions would be reinstated if the Senate passes the House bill.
Why is this happening now?
In June 2013, NSA contractor Edward Snowden leaked reams of classified documents to news organizations about NSA surveillance programs around the world. Intelligence officials contended that the disclosures caused immense harm to U.S. capabilities, and the Justice Department charged Snowden — who fled to Russia, where he now lives — with espionage and other crimes. The NSA began collecting domestic phone data in secret after the terrorist attacks on Sept. 11, 2001. The Foreign Intelligence Surveillance Court authorized the program in 2006 after amendments to the Patriot Act were signed into law. But those powers were set to expire every three years unless Congress renewed them. The Senate’s failure to act on Sunday is the first major legislative rebuff of domestic surveillance operations in the post-Sept. 11 era. The proposed law would be the only legislative reform to result from the Snowden leaks.
LEAKS BY Edward Snowden, a contractor at the National Security Agency at the time, revealed the existence of the telephone surveillance program.