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This is a milestone. The administration’s proposal is an acknowledgement that a program that was endorsed in secret by all three branches of government, and that was in place for about a decade, has not survived public scrutiny. It’s also an acknowledgement that the government’s legitimate intelligence interests can be accommodated without placing the entire country under surveillance.Yet at the same time, NSA is also behind the proposal. Ken Dilanian of the Los Angeles Times reports that:
Gen. Keith Alexander, the NSA's director, who is retiring, has been lobbying members of Congress in favor of the compromise. He believes it is the best outcome the NSA could hope for with the program, the official said. The NSA's collection authority currently will expire in 18 months unless Congress reauthorizes the program.Indeed, the proposal has a huge benefit in it for NSA, one that stands actually to increase its operational coverage of telephony metadata. As Dilanian rightly notes, NSA would actually "gain access to cellphone information it currently lacks" if the administration's proposal were adopted. The dirty little secret about the comprehensive metadata collection program is that it isn't actually comprehensive---not even all that close. This dirty little secret, now that I mention it, also isn't all that secret. Back in February, the New York Times reported:
The National Security Agency’s once-secret program that is collecting bulk records of Americans’ domestic phone calls is taking in a relatively small portion of the total volume of such calls each day, officials familiar with the program said on Friday.
While the agency is collecting a large amount of landline phone data, it has struggled to take in cellphone data, which has undergone explosive growth in recent years and presents additional technological hurdles, the officials said.
According to the Washington Post, the actual take was less than a third of calls.
As Dilanian points out, the administration's proposal would address this rather large operational gap. The government would collect no telephony metadata itself, and it would lose the five-year storage of metadata that it gets to do now under 215, relying instead on the phone companies to store their own metadata for much shorter periods of time. But the telephone companies would be under an obligation to respond quickly to court-approved queries for metadata they have. And they would be obligated to store it in standardized forms that would be interoperable across companies. So NSA would have a shorter period of metadata but far more comprehensive coverage within that period.
This is actually a very good deal for the agency. It's not simply, as Dilanian says, the best the agency can hope to get under present political conditions. At least some people believe it would provide the agency with a significant net operational gain over the program as it exists now.
And that raises a very interesting question: Is this situation one in which civil liberties interests and operational interests largely coincide? Put another way, is there a bill here that both Jameel Jaffer and General Alexander would rightly and reasonably regard as a win?
Whether there's a deal to be done depends to a great degree on details. 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. But I, for one, am intrigued by the possibility that this may not be a fight anyone has to lose. If that turns out to be the case, President Obama will deserve huge credit for finding a policy space that enhances intelligence collection by protecting civil liberties more robustly.