A presidential advisory panel has recommended sweeping changes to government surveillance programs, including limiting the bulk collection of Americans’ phone records by stripping the National Security Agency of its ability to store that data in its own facilities. Court orders would be required before the information could be searched.
In a 300-page report released Wednesday, the five-member panel also proposed greater scrutiny of decisions to spy on friendly foreign leaders, a practice that has outraged U.S. allies around the world.
Although the panel’s 46 recommendations broadly call for more oversight of the government’s vast spying network, few programs would be ended. There’s also no guarantee that the most stringent recommendations will be adopted by President Barack Obama, who authorized the panel but is not obligated to implement its findings.
The task force said it sought to balance the nation’s security with the public’s privacy rights and insisted the country would not be put at risk if more oversight was put in place. In fact, the report concludes that telephone information collected in bulk by the NSA and used in terror investigations “was not essential to preventing attacks.”
“We’re not saying the struggle against terrorism is over or that we can dismantle the mechanisms that we have put in place to safeguard the country,” said Richard Clarke, a task force member and former government counterterrorism official. “What we are saying is those mechanisms can be more transparent.”
The review group was set up as part of the White House response to leaks from former NSA contractor Edward Snowden about the scope of the government surveillance programs. Snowden is now a fugitive from U.S. authorities and was granted temporary asylum by Russia. The White House is conducting its own intelligence review, and Obama is expected to announce his decisions in January.
The White House had planned to release the panel’s report next month, but officials said they decided to make it public now to avoid inaccurate reporting about its content. It coincided with increased political pressure on Obama after a blistering ruling Monday from a federal judge who declared the NSA’s vast phone data collection likely was unconstitutional.
The judge, Richard Leon, called the NSA’s operation “Orwellian” in scale and said there was little evidence that its gargantuan inventory of phone records from American users had prevented a terrorist attack. However, he stopped his ruling from taking effect, pending a likely government appeal.
The panel’s most sweeping proposal would terminate the NSA’s ability to store the telephone data and instead require it to be held by the phone companies or a third party. Access to the data would then be permitted only through an order from the Foreign Intelligence Surveillance Court.
“With regard to the bulk metadata of phone calls, we think there should be judicial review before that information is accessed, and we don’t think the government should retain it,” Clarke said.
If both recommendations were enacted, it’s likely they would slow down the intelligence collection process. The panel’s recommendations do allow for exceptions “in emergencies,” leaving open the possibility of intelligence agencies scanning the information quickly and asking for permission later if they suspect imminent attack.
The task force did not say how long the phone companies would be required to hold the private data. The phone companies’ retention policies vary markedly, according to information recently provided to the Senate Commerce Committee, ranging from one year at Verizon and US Cellular to five years at AT&T and seven to 10 years at T-Mobile.
Representatives of AT&T and Verizon declined to comment on the report and its recommendations. Spokesmen for T-Mobile and US Cellular didn’t immediately respond to requests for comment.
Another major shift recommended by the task force would tighten federal law enforcement’s use of so-called national security letters, which give the government sweeping authority to demand financial and phone records without prior court approval in national security cases. The task force recommended that authorities should be required to obtain a prior “judicial finding” showing “reasonable grounds” that the information sought was relevant to terrorism or other intelligence activities.
The panel also tackled the diplomatic furor about NSA spying on the leaders of allied nations, including Germany. The group recommended that such spying be approved by the highest levels of government and that the decisions be based in part on whether the United States shares “fundamental values and interests” with the leaders of those nations.
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