Administration White Paper Justifies Bulk Collection of Business Records

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By Alexei Alexis  

 

Despite promising to work with Congress to overhaul a controversial phone surveillance program, the Obama administration has released a white paper that vigorously defends the legality of the effort.

The recently unveiled paper uses a broad interpretation of Section 215 of the PATRIOT Act to justify the bulk collection of U.S. phone customer records. The so-called business records provision allows the federal government to obtain an order from the secretive Foreign Intelligence Surveillance Court (FISC) compelling a U.S. company to turn over information that is “relevant” to a terrorism investigation, including sensitive customer data.

“The idea [presented in the paper] is that you can't determine what's relevant until you grab everything and run it through computers,” Michelle Richardson, a legislative counsel at the American Civil Liberties Union, told BNA. “I don't think that's consistent with the statute. I also think it's incredibly dangerous, because it could apply to things other than phone records, such as internet data.”

Administration's Reform Intentions Doubted

Richardson said it remains to be seen whether the administration is interested in seeking changes that will satisfy privacy advocates. “This needs to be about substance, rather than public relations,” she said.

The administration is under fire in the wake of press reports about sweeping surveillance activities by the National Security Agency. The administration has confirmed the existence of a massive NSA program that targets “metadata” related to Americans' phone calls, such as numbers dialed. A court order leaked to the press in June authorized the bulk collection of phone records from Verizon.

The program is designed to facilitate intelligence-gathering for the purpose of combatting terrorism, according to the administration. However, critics such as Rep. Jim Sensenbrenner (R-Wis.), a chief architect of the PATRIOT Act, say the effort is privacy intrusive and at odds with existing law.

A separate NSA initiative, known as PRISM, has also prompted privacy concerns. That program, according to the administration, operates under Section 702 of the Foreign Intelligence Surveillance Act and targets the web communications of persons located outside the United States.

Obama Outlines Overhaul Plan

In the face of mounting public pressure, President Obama Aug. 9 announced a series of steps that his administration will take to address concerns around the NSA programs. The plan includes working with Congress to pursue “appropriate reforms” to Section 215.

Speaking at a White House press conference, Obama said the phone records program is an important tool in the effort to disrupt terrorist plots and does not allow the government to listen to phone calls without a warrant. “But given the scale of this program, I understand the concerns of those who would worry that it could be subject to abuse,” the president said, adding that he was willing to pursue new constraints on the use of Section 215.

In addition, the president said his administration will:

• work with Congress to ensure that the government's position in FISC proceedings is challenged in “appropriate cases” by an adversary focused on privacy concerns;

• create a new intelligence community website that will serve as a “hub” for surveillance transparency; and

• form a high-level group of outside experts to conduct a review on surveillance technologies.

 

After the press conference, the administration released its white paper explaining the government's legal justification for the phone records program.

According to the paper, pursuant to Section 215, the FBI obtains orders from the FISC directing certain telecommunications service providers to produce business records that contain information about phone calls, generally those made between the United States and a foreign country and those made entirely within the United States. The information collected includes phone numbers dialed, as well as the date, time, and duration of a call.

The NSA stores and analyzes this information under “carefully” controlled circumstances, according to the administration. The government is not allowed to collect the content of any telephone call, or the names, addresses, or financial information of any party to a call. In addition, the government cannot conduct “substantive” queries of the bulk records for any purpose other than counterterrorism.

The program was first authorized by the FISC under Section 215 in 2006 and has since been renewed by the court 34 times, according to the white paper.

Section 215 Broadly Interpreted

In defending the legality of the program, the administration noted that Section 215 permits the FBI to seek a court order directing a business or other entity to produce records or documents when there are “reasonable grounds to believe” that the information sought is relevant to an authorized investigation of international terrorism. Furthermore, courts in other legal contexts have held that “relevance” is a broad standard, the administration argued.

“Although broad in scope, the telephony metadata collection program meets the 'relevance' standard of Section 215 because there are 'reasonable grounds to believe' that this category of data, when queried and analyzed consistent with the Court-approved standards, will produce information pertinent to FBI investigations of international terrorism, and because certain analytic tools used to accomplish this objective require the collection and storage of a large volume of telephony metadata,” the administration said.

However, the administration stressed that Section 215 does not necessarily authorize the collection and storage of all types of information in bulk. According to the white paper, communications metadata “is different from many other kinds of records because it is inter-connected and the connections between individual data points, which can be reliably identified only through analysis of a large volume of data, are particularly important to a broad range of investigations of international terrorism.”


   

“Although the white paper raises some interesting points, it also fails to confront counterarguments and address contrary caselaw.”  

 

 

Orin Kerr, George Washington University Law School

Orin Kerr, a research professor at George Washington University Law School and a former Justice Department attorney, said he found the white paper a “somewhat frustrating read” in that it is essentially a brief for the government's side of the debate.

“Although the white paper raises some interesting points, it also fails to confront counterarguments and address contrary caselaw,” Kerr said in an Aug. 12 blog post.

Richardson said the paper raises new concerns about government surveillance.

“I don't feel any better [after reading it],” she told BNA.

The fact that Obama has committed to working with Congress on overhaul efforts is a “good sign,” she said. However, it is clear that privacy advocates have not yet persuaded him on the merits of their arguments, she added.

Legal, Legislative Efforts Under Way

Meanwhile, the Electronic Privacy Information Center, an advocacy group in Washington, has filed a petition with the U.S. Supreme Court seeking a review of whether the FISC exceeded its “narrow” statutory authority by requiring Verizon to provide the government with customer records in bulk.

In addition, the NSA programs have triggered a flurry of activity on Capitol Hill. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) has introduced a bill (S. 1215) to curtail the government's ability to collect data under Section 215. Sen. Richard Blumenthal (D-Conn.), a member of Leahy's panel, has proposed legislation (S. 1460) to create a privacy rights advocate with the power to argue against U.S. government officials before the FISC.

After an Aug. 1 meeting with Obama, other members of Congress indicated that legislative efforts will continue over the August recess and in the fall.

House Judiciary Committee Chairman Bob Goodlatte (R-Va.), one of the attendees, issued a statement saying that his panel will continue with a review of the matter to “ensure that the laws we have enacted are executed in a manner that complies with the law and that protects Americans' civil liberties, and determine if changes to current law are necessary.” The committee will likely hold a classified hearing on the issue in September, he said.

Sensenbrenner, a senior member of the committee, issued a separate statement saying that he planned to introduce legislation after the August recess to ensure that Section 215 is properly interpreted and implemented.

“It is becoming increasingly apparent the balance between security and liberty has been tainted,” he said. “Amidst public outcry, the President invited members from both sides of the debate to discuss this important issue.”

The upcoming bill will rein in the “dragnet” collection of data by the NSA, increase the transparency of the FISC, and put new protections in place for businesses that work with the government, he said.

Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) and House Intelligence Committee Chairman Mike Rogers (R-Mich.), who have been ardent defenders of the NSA programs, pledged in a joint statement to work on proposals that would “improve transparency and strengthen privacy protections to further build the confidence of the American public in our nation's counterterrorism programs.”

Clapper Announces Surveillance Review Group

In a related development, Director of National Intelligence James Clapper Aug. 12 announced that he was establishing a review group on surveillance technologies, at the direction of the president.

“The Review Group will assess whether, in light of advancements in communications technologies, the United States employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust,” Clapper said in a statement.

The group will brief its interim findings to the president within 60 days of its establishment, and provide a final report with recommendations no later than Dec. 15, the statement said.


The administration's white paper can be found at http://op.bna.com/der.nsf/r?Open=sbay-9aeu73.

Orin Kerr's blog post is available at: http://www.volokh.com/2013/08/12/problem-withthe-administration-white-paper-on-the-telephony-metadata-program/#more-78011.