President’s Proposal to End Bulk Collection Leaves Key Questions Unanswered

March 27, 2014

Today, the White House issued a fact sheet announcing President Obama’s intention to end the NSA’s bulk collection and storage of Americans’ phone records. The Brennan Center for Justice at New York School of Law supports ending bulk collection as a critical step in curbing surveillance overreach, but urges the president to supply key missing details and to support legislation that includes robust privacy protections for Americans.

The president’s plan would leave phone records in the hands of the telephone companies instead of the government and would require a FISA Court order to perform searches for records associated with specific phone numbers. The court order would also require telephone companies to turn over the call records of everyone in contact with that phone number (a second “hop”).

But many facts have not yet been disclosed. The fact sheet does not identify the standard that the government must meet to obtain a court order, beyond a vague reference to “national security concerns.” Nor does the fact sheet identify any limits on the government’s ability to keep and search the records it obtains, which will necessarily include large amounts of information about innocent Americans. And it does not address the bulk collection of other types of records — such as financial transactions — or other controversial NSA practices that came to light as a result of Edward Snowden’s disclosures.

“Ending bulk collection would be a tremendously positive step, but the White House’s fact sheet raises some troubling questions,” said Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice. “The executive branch doesn’t need Congress’s permission to end a practice that it never should have started. The very fact that the president’s plan requires legislation means he has something in mind other than simply ending the program.” 

“The president’s focus on reforming bulk collection shows that the program, which supposedly had the approval of all three branches of government, could not withstand public scrutiny,” said Faiza Patel, co-director of the Liberty and National Security Program at the Brennan Center for Justice. “He now needs to tell the American people exactly how he intends to fix it. A vague one-page fact sheet and leaked stories are not enough.”

“Being ‘two-hops’ from a suspicious person should not subject innocent Americans to a government data grab,” said Mike German, Fellow at the Brennan Center for Justice. “The president’s proposal fails to address, and in fact perpetuates, the collection of completely innocent Americans' data for inclusion in the NSA’s 'corporate store,' where it can be used for myriad purposes, not just terrorism.”

While the president could end bulk collection without Congress’s approval, legislation is needed to address surveillance reform more broadly and for the long term. The president should support the USA FREEDOM Act, introduced by Rep. Jim Sensenbrenner (R-Wis.) and Sen. Patrick Leahy (D-Vt.). Other so-called “surveillance reform” bills either codify bulk collection (Sen. Diane Feinstein’s FISA Improvements Act) or eliminate the requirement of prior judicial approval for collecting business records (Reps. Rogers and Ruppersberger’s FISA Transparency and Modernization Act of 2014).

For more information or to set up an interview, contact Seth Hoy at seth.hoy@nyu.edu or (646) 292-8369.