Obama Unveils NSA Proposal

Yesterday, the White House released a Fact Sheet detailing the specific steps the Obama Administration proposes to take in order to “implement the transition” that would “end the Section 215 Bulk Telephony Metadata Program as it previously existed and establish a new mechanism to preserve the capabilities we need without the government holding this bulk metadata.” As you will recall, this was a pledge President Obama made during his January 17, 2014 Department of Justice speech (you can also find more background information as well as updates regarding those pledges here and here).  Here’s the proposal (emphasis added):

Under the President’s proposal, a new program would be created with the following key attributes:

• the government will not collect these telephone records in bulk; rather, the records would remain at the telephone companies for the length of time they currently do today;
• absent an emergency situation, the government would obtain the records only pursuant to individual orders from the FISC approving the use of specific numbers for such queries, if a judge agrees based on national security concerns;
• the records provided to the government in response to queries would only be within two hops of the selection term being used, and the government’s handling of any records it acquires will be governed by minimization procedures approved by the FISC;
• the court-approved numbers could 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; and
• the companies would 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.

Of course, legislation must be passed implementing these proposals, and President Obama has called on Congress to do so quickly. But, as Benjamin Wittes from Lawfare pointed out: “The administration’s proposal still lacks legislative language, and things may get far more contentious when meat starts appearing on what are now bare bones.”

For now, I wanted to make the President’s proposal available. You can expect a follow-up soon with a more substantive discussion on the NSA reforms.