The Senate Intelligence Committee three years ago secretly considered — but ultimately rejected — alternate ways for the National Security Agency to collect and store massive amounts of Americans’ phone records.
One of those options, outlined in a classified 2011 NSA analysis and reviewed in detail during closed committee meetings, was similar to what President Barack Obama is now advocating: that the government stop the bulk collection of Americans’ phone records and instead ask phone companies to search their own business records for terrorism connections.
After reviewing the 2011 NSA analysis, the Senate overseers decided not to move forward with any alternate arrangement, according to two government officials familiar with the review. The officials spoke on condition of anonymity because they were not authorized to discuss the classified report.
The 2011 report is significant because not much has changed — operationally — with the NSA’s phone-records program in the past three years. What has changed is that Americans now know the extent of the once-classified, massive surveillance operation, and they’re not happy with what they consider to be invasions of privacy.
Obama’s decision to call for changes in the program is not because he believes the program is flawed. It’s because he needs to regain the trust of the American public.
“I want to emphasize once again that some of the dangers that people hypothesize when it came to bulk data, there were clear safeguards against,” Obama said Tuesday in the Netherlands, at the close of a summit on nuclear security. “But I recognize that people were concerned about what might happen in the future with that bulk data.”
The director of the NSA, Gen. Keith Alexander, said the new approach addresses civil liberty and privacy concerns.
“Rather than us taking all the data, all we’re going to get is that data that directly links to a terrorist’s number,” Alexander told Fox News on Tuesday. Alexander is retiring; his last day at the agency is Friday.
The bulk collection of Americans’ phone records is authorized under Section 215 of the USA Patriot Act. When the program was up for reauthorization in 2011, it was hotly debated behind closed doors among members of the Senate Intelligence Committee, said Sen. Jay Rockefeller, a member of the committee.
Most members of that committee decided that the current system, in which the NSA holds the phone records, was better than the alternatives, Rockefeller, D-W.Va., said.
“It’s the only way,” Rockefeller said. Shifting the sole custody of the records to the phone companies, he said, would be “disastrous.”
Sen. Ron Wyden, however, was an advocate of the phone company approach back in 2011, Rockefeller said. Wyden is happy to see that more of his peers are coming around to his view.
Wyden, D-Ore., is a longtime privacy advocate and regularly raises concerns about the potential for abuse when the government holds vast amounts of data. He has opposed the NSA’s bulk collection program for years and he has tried to compel the administration to disclose the details about the dragnet surveillance to the American public. But the details remained classified until a former NSA systems analyst, Edward Snowden, leaked classified documents last year, spelling out the magnitude of the NSA’s collection.
These revelations prompted dozens of legislative proposals to change, strengthen or eliminate the program. The latest came Tuesday from leaders of the House Intelligence Committee, who introduced a bill similar to what the White House is advocating.
“I’m encouraged that more and more legislators and others who have supported the present system are now calling for dramatic reform,” Wyden said Monday. “My sense is, increasingly on a bipartisan basis, legislators are seeing how fraught it is for the government to hold the records.”
Rep. Mike Rogers, R-Mich., co-authored the legislation that was introduced Tuesday. But he is not convinced, as Wyden is, that the surveillance violates Americans’ constitutional rights.
“We’re changing the program based on a perception, not a reality,” Rogers said shortly before he introduced a measure that would end the program in its current form. Americans, he said, don’t want the government holding onto their data.
“They just didn’t have a comfort level with the NSA holding, in bulk, metadata, even though we had huge levels of protection,” Rogers said. “I do believe that privacy was better protected than you’re going to see in the phone companies.”
Sen. Dianne Feinstein, the head of the Senate Intelligence Committee, was among the senators who in 2011 believed the current bulk-collection program was preferable to the alternatives at the time.
However, those options were not only classified in 2011, the debate about alternatives was classified, too. This made it difficult to enact legislation to change a classified program without disclosing details of the program, one of the government officials familiar with the review said.
Feinstein, D-Calif., has been a staunch supporter of the NSA phone records collection program and came to the agency’s defense in the wake of the Snowden disclosures. Yet, she’s said she’s open to potential reforms, as long as the effectiveness of the program and security of the data are not harmed.
“I believe the president’s plan is a worthy effort,” Feinstein said Tuesday. “I am open to reforming the call records program as long as any changes meet our national security needs and address privacy concerns, and that any changes continue to provide the government with the means to protect against future terrorist attacks.”
Feinstein said she intends to schedule a hearing to examine the White House proposal and that of her counterparts in the House.
As of Tuesday night, the committee had not decided whether that hearing would be open to the public or held behind closed doors.