NSA hangs it up — for now

Bulk col­lec­tion of phone data stops, but new pro­gram could start soon

Los Angeles Times - - THE WORLD - By Brian Bennett brian.bennett@la­times.com Twit­ter: @ByBri­anBen­nett Times staff writer Lisa Mascaro con­trib­uted to this re­port.

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.

Guardian

LEAKS BY Ed­ward Snow­den, a con­trac­tor at the Na­tional Se­cu­rity Agency at the time, re­vealed the ex­is­tence of the tele­phone sur­veil­lance pro­gram.

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