President Still Needs to Answer Key Questions
March 28, 2014
It’s good that the president recognizes the need for legislative reform, but that shouldn’t hold him back from immediately taking steps within his authority to curb mass surveillance.
Laura Pitter, senior national security researcher

(Washington, DC) – President Barack Obama’s proposal to end the government’s bulk collection of phone records in the United States could be a significant step forward, but important questions remain unanswered, Human Rights Watch said today. President Obama announced the proposal on March 27, 2014, issuing a statement and a fact sheet, though media reports revealed preliminary details earlier in the week.

Under the plan, which would require Congress to enact legislative changes, the government would no longer collect the phone records of potentially millions of people in the US and store them in bulk under Section 215 of the USA PATRIOT Act. The proposal does not address the bulk collection of other types of business records under Section 215, however, or the collection taking place under Section 702 of the amendments to the Foreign Intelligence Surveillance Act. It also does not address bulk collection that may be taking place under Executive Order 12333, a much more secretive provision that authorizes vast surveillance powers overseas.

“If the massive bulk collection of US call records, authorized in secret and operated for years, finally comes to an end, it will be a major step forward,” said Laura Pitter, senior national security researcher at Human Rights Watch. “But until the president addresses some key questions about this proposal, it will be difficult to gauge its effectiveness. Ultimately, the reforms will remain incomplete unless the collection of other kinds of records and other issues are addressed.”

Rather than collecting and storing the phone metadata in bulk, under the Obama proposal the data would stay with the phone companies for no longer than firms currently retain it. The government could only seek to obtain call record information about specific numbers with the approval of a judge of the Foreign Intelligence Surveillance Court (FISC).

The government would only be permitted to obtain call record “two hops” out from a specific number – that is the numbers linked to the original number and numbers linked to the second group of numbers, rather than the three hops that had been permitted earlier. That proposal would solidify in law a policy change that Obama announced in January.

The president should further explain a number of aspects of this or future proposals that might have a major impact on its value and effectiveness, Human Rights Watch said. They include:

Clarify the minimum legal standard that will apply to obtain an order from the FISC: The proposal merely states that the government would be able to obtain the records as long as a judge agrees “based on national security concerns,” though statements to the media indicate that the “baseline” standard would be reasonable articulable suspicion of a phone number’s connection to terrorism or espionage, which is already a fairly loose standard.
  • Explain if or how any future proposals will addresses bulk collection of other business records. The proposal as outlined in the fact sheet only mentions telephone metadata collection. But current law allows the government to collect other types of records in bulk, including financial, medical, and Internet records.  Nothing in the proposal addresses concerns about the collection of these other types of records.
  • Make clear what will happen to records once collected. Even under a plan that allows for the collection of records only two hops out rather than three, this would still mean that the US would be allowed to obtain the records of millions of people. The Obama proposal does not make clear how long those records may be retained and used to obtain information, and how they will be stored.
  • Some bills already put forward by lawmakers offer greater protections, Human Rights Watch said. The USA Freedom Act introduced by Rep. Jim Sensenbrenner, for example, would protect not only phone records under section 215 of the Patriot Act, but also other records subject to collection under the statute.

The president could take additional steps to limit the surveillance programs, even in the absence of legislative action, Human Rights Watch said. One possible step would be to decline to seek a 90-day reauthorization of the existing program.

“It’s good that the president  recognizes the need for legislative reform, but that shouldn’t hold him back from immediately taking steps within his authority to curb mass surveillance,” Pitter said.