The New York Times reports that President Obama is preparing to submit legislation that would rein in the NSA’s metadata collection activities. This is a follow up to his statement in January that he wants those records stored elsewhere and to require FISA warrants before being accessed.
The Obama administration 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 end the aspect that has most alarmed privacy advocates since its existence was leaked last year, according to senior administration officials.
Under the proposal, they said, the N.S.A. would end its systematic collection of data about Americans’ calling habits. 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. And the N.S.A. could obtain specific records only with permission from a judge, using a new kind of court order.
In a speech in January, President Obama said he wanted to get the N.S.A. out of the business of collecting call records in bulk while preserving the program’s abilities. He acknowledged, however, that there was no easy way to do so, and had instructed Justice Department and intelligence officials to come up with a plan by March 28 — Friday — when the current court order authorizing the program expires.
As part of the proposal, the administration has decided to ask the Foreign Intelligence Surveillance Court to renew the program as it exists for at least one more 90-day cycle, senior administration officials said. But under the plan the administration has developed and now advocates, the officials said, it would later undergo major changes.
The new type of surveillance court orders envisioned by the administration would require phone companies to swiftly provide records in a technologically compatible data format, including making available, on a continuing basis, data about any new calls placed or received after the order is received, the officials said.
They 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.
Okay, this is a good start. But here’s the thing: He can order much of this to be done immediately. He could have ordered it the day he took office. He has full authority to issue a presidential directive that forbids the NSA from engaging in bulk data collection of this type and/or requiring them to get a warrant before searching these databases. That would, of course, be what the 4th Amendment requires. So why didn’t he do this years ago?
We do need legislative reform as well, of course. Both the FISA law and the Patriot Act need major overhauls to bring them in line with the Constitution. But Obama’s track record on this is hardly reassuring, nor is the track record of the congressional leadership of both parties. Remember that as senator, Obama promised to filibuster the FISA Amendments Act if it included telecom immunity, then not only didn’t filibuster it but voted for it. Not exactly a cause for trust on this issue.
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