January 19

Overhauling collection of phone records is largely out of Obama’s hands

The president avoided major action on the practice of sweeping up billions of phone, email and text messages from across the globe.

By Ellen Nakashima
The Washington Post

And Greg Miller

(Continued from page 1)

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President Obama talks about National Security Agency surveillance Friday at the Justice Department in Washington.

The Associated Press

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The momentum, he said, is with the reformers.

“The one-two punch is not only our side gaining momentum, but we have the clock in our favor,” Wyden said, alluding to the 2015 sunset provisions that could end the program. “We’ve got a good chunk of time to keep building to the expiration.”

Congress will be key to determining whether the NSA bulk collection ends or whether it is transformed – maybe through the use of a third party or mandated data retention by the phone companies.

In the House, Rep. James Sensenbrenner Jr., R-Wis., said: “The bottom line is real reform cannot be done by presidential fiat.” Congressional action “should be taken to protect Americans’ civil liberties by reining in the NSA, ending bulk collection,” he said Friday.

Sensenbrenner and Sen. Patrick Leahy, D-Vt., are sponsoring legislation, the USA Freedom Act, in their respective chambers that would outlaw bulk collection. If brought to the floor, most analysts agree, that bill would pass the House. Its prospects are less certain in the Senate.

But knowing that the House has the votes to end the government’s mass collection of data – and could block the renewal of Section 215 next year – has administration officials scrambling to find a solution.

A competing bill, co-sponsored by Senate Intelligence Committee Chairman Dianne Feinstein, D-Calif., and ranking Republican Saxby Chambliss of Georgia would codify the NSA’s ability to conduct bulk collection under Section 215. But it is not clear when or whether that bill will advance to the floor.

Feinstein’s panel has considered options involving the phone companies and has not found a solution that enables data to be returned quickly, in a usable format, secure from breaches and without false negatives, a Senate aide said. “We haven’t yet identified” a solution that meets Obama’s goal and preserves the NSA’s capabilities, the aide said.

The president acknowledged in his speech that there are no immediate viable solutions. He said some have suggested there might be a way forward through “a combination of existing authorities, better information sharing and recent technological advances.” But, Obama said, “more work needs to be done to determine exactly how this system might work.”

TECHNICAL CHALLENGES

One option, officials said, is to find a technology that allows the government to submit a phone number to be queried against several phone companies’ databases at once.

Although commercial technologies exist to do such data mining, the challenge increases because companies hold the data in different formats and for different lengths of time, former NSA technicians said.

The NSA set up its program, Obama said, to solve the problem presented by al-Qaida hijacker Khalid Almihdhar, whose calls to a safehouse in Yemen the NSA intercepted before the Sept. 11, 2001, attacks. The NSA had the Yemen number, but did not know Almihdhar was calling from San Diego. If it could have run the Yemen number against a database of all calls, the theory goes, Almihdhar’s number should have appeared.

The problem is that phone companies are used to receiving law enforcement requests to search for customers’ records. If they are handed a number that does not belong to a customer, say a number in Yemen, the task becomes much harder.

“It would be an incredibly long process, because basically we would be setting a computer running to search through billions of numbers,” said one industry official who was not authorized to speak for the record. “It would probably take days to comb through the database.”

Nonetheless, Todd Hinnen, a former acting assistant attorney general for national security in the Obama administration, said: “The United States has the best technologists and innovators in the world. I’m confident that if the intelligence community focuses on it and works with companies in the private sector, they can solve that problem.”

Obama wants Holder and Clapper to work with Congress and the tech and phone companies to develop a plan. “He feels it’s worth it to try and come up with a solution that comes to some middle ground that people can live with,” the administration official said.

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