NSA reforms: Keep the database, but somewhere other than NSA?

posted at 8:01 am on January 17, 2014 by Ed Morrissey

At 11 am today, Barack Obama will roll out the reforms of the NSA promised after the scandal and embarrassment of the Edward Snowden affair. The White House leaks this morning promise “major” reform, and news outlets report that Obama will end the phone metadata collection program “as we know it.” But at least at first, nothing much will change at all:

President Barack Obama will announce on Friday a major overhaul of a controversial National Security Agency program that collects vast amounts of basic telephone call data on foreigners and Americans, a senior Obama administration official said.

In an 11 a.m. (1600 GMT) speech at the Justice Department, Obama will say he is ordering a transition that will significantly change the handling of what is known as the telephone “metadata” program from the way the NSA currently handles it. …

In a nod to privacy advocates, Obama will say he has decided that the government should not hold the bulk telephone metadata, a decision that could frustrate some intelligence officials.

In addition, he will order that effectively immediately, “we will take steps to modify the program so that a judicial finding is required before we query the database,” said the senior official, who revealed details of the speech on condition of anonymity.

While a presidential advisory panel had recommended that the bulk data be controlled by a third party such as the telephone companies, Obama will not offer a specific proposal for who should store the data in the future.

And here we come to the point of confusion. At least so far, there have been a couple of options for keeping the metadata, and only a couple. Either the government requires telecoms to retain the data for a long period of time and leave them open to subpoena, or the government keeps them.  The first option doesn’t really work if the intention is to perform datamining on an extremely large scale, but it would help for specific searches based on probable cause.  The second option allows for datamining, but would be so large as to make retention by any other agency except for the one who needs it impractical.

This morning’s reports might suggest that the government will outsource the storage to a third party. That, however, doesn’t sound much better. Instead of the NSA holding the data, some other private-sector firm (maybe a TRW/Northrop or similar high-security contractor), and the NSA will still get access to it. That’s not really a “reform” as much as it is a complication, is it?

So, which will it be? We don’t know yet, because …

Obama has asked Attorney General Eric Holder and the intelligence community to report back to him before the program comes up for reauthorization on March 28 on how to preserve the necessary capabilities of the program, without the government holding the metadata.

That prompted this quip from Ron Fournier:

In other words, nothing will change on metadata collection for the next couple of months.  The NSA will continue to collect and retain the data while Holder and the administration mull it over a while longer:

The presidential Review Group on Intelligence concluded in December that data collection should remain but that the government must do a better job of protecting civil liberties in the context of national security.

According to the official, the president will recommend that the collection of Americans’ phone records remain at the NSA temporarily as he seeks input from Congress and the U.S. intelligence community on where to store the data permanently.

Effective immediately, the administration will take steps to modify the program so that a “judicial finding is required” before the NSA queries the database, the official said.

The “judicial finding” requirement sounds good, but in practice, that won’t be much of a change, either. The FISA court has been highly cooperative with NSA requests, even after the court determined that the agency violated court orders. Very few requests get denied by the FISA court. Assuming that doesn’t change, the only reform this will impose will be a slightly slower process to do pretty much what the NSA has been doing all along. Adding a privacy advocate might make that process a little more adversarial, depending on who the “advocate” is, but unless the courts take the advocates as more credible than the national-security organs demanding the access, I’m going to guess that the approval rates won’t deviate significantly from what we’ve already seen.

The bottom line appears to be that the metadata collection will continue, the NSA will continue to get access to it, and that the only change will be an extra lawyer in the request process and a change of address for the data. For a program that hasn’t done much to discover terrorist plots, the leaks so far don’t seem to add up to major reform.

Update: The parsing around collection prompted this from Chuck Todd:

Yes. Next question?


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I trust them to do the right,I mean correct thing.
/sarc

Neal4007 on January 17, 2014 at 8:06 AM

…more lies and lawlessness!

KOOLAID2 on January 17, 2014 at 8:06 AM

“…but somewhere other than NSA?”

Google DropBox?

Tsar of Earth on January 17, 2014 at 8:06 AM

Good Morning, HotAir!

ITguy on January 17, 2014 at 8:07 AM

This morning’s reports might suggest that the government will outsource the storage to a third party.

You mean a third party other than Edward Snowden, right? ;0

Seriously, if a contractor (not even a civil servant) can steal 1.7M documents and share them with both the Chinese and Russians…..What difference, at this point, does it make?

The NSA programs are not going to change. The FISA court is not going to be curbed in their attack on civil rights by administrative changes. And nevermind that all this datamining hasn’t stopped a single terrorist attack including the Boston Marathon bombing.

Obama is going to get up this morning and put lipstick on a pig other than the vile sow he married.

Happy Nomad on January 17, 2014 at 8:11 AM

If there’s a third party housing the bulk phone/internet data, rather than NSA, would you consider that gov’t collection or not? Serious Q

Well?? No, but I guess that’s what passes for a serious question in the Media these days.

whbates on January 17, 2014 at 8:17 AM

Checking eBay to see what the current bid is on the disk farm at the NSA Data Center…
Wonder if they’ll be wiped when I get them.

Tsar of Earth on January 17, 2014 at 8:17 AM

If there’s a third party housing the bulk phone/internet data, rather than NSA, would you consider that gov’t collection or not? Serious Q

Well?? No, but I guess that’s what passes for a serious question in the Media these days.

whbates on January 17, 2014 at 8:17 AM

It is a serious question. It’s one thing for the government to collect massive databases. Another thing entirely if it is a third party. In short, how do you make the case that a third party can collect and/or hold data gleaned from spying?

Put another way is spying on Americans an inherently governmental function? The Stasi and NKVD would say yes. And so apparently would Obama.

Happy Nomad on January 17, 2014 at 8:25 AM

The NSA is not going to loose any access to this data, no matter what the final arrangement turns out to be. This data is like an entitlement, like unemployment insurance or food stamps. Once they get it, it’s impossible to take it away.

Walter L. Newton on January 17, 2014 at 8:29 AM

“Major” reform?

Well yes. In the same way a leg lamp is a “major” award.

onomo on January 17, 2014 at 8:29 AM

Adding a privacy advocate might make that process a little more adversarial, depending on who the “advocate” is,

Advocate = Obama donor.

Walter L. Newton on January 17, 2014 at 8:32 AM

Why outsource this to a Canadian company cause that worked so well before…Oh Wait!

workingclass artist on January 17, 2014 at 8:33 AM

Cripe……third party?

Snowden part deux?

cmsinaz on January 17, 2014 at 8:35 AM

The evil empire,aka Cleveland Clinic,is requiring their employees to carry,on their person, an egg similar to a Fit Bit bracelet.It tracks there whereabouts,24/7.
Looks like George Orwell WAS clairvoyant.

Neal4007 on January 17, 2014 at 8:43 AM

Is anyone else here a “Person of Interest” fan, who finds it interesting that Obama basically wants to just move “the machine” to a different location?

ITguy on January 17, 2014 at 8:49 AM

In other words, nothing will change on metadata collection for the next couple of months administrations

FIFY.

Chris of Rights on January 17, 2014 at 8:53 AM

I mean really, what could possibly go wrong with this stroke of genius?

Ellis on January 17, 2014 at 8:56 AM

It is a serious question. It’s one thing for the government to collect massive databases. Another thing entirely if it is a third party. In short, how do you make the case that a third party can collect and/or hold data gleaned from spying?

Put another way is spying on Americans an inherently governmental function? The Stasi and NKVD would say yes. And so apparently would Obama.

Happy Nomad on January 17, 2014 at 8:25 AM

The entire question is silly actually. Nobody, should be collection this data on a meta basis. Did you ever ask yourself why we need more laws mandating privacy of the data that the Government is forcing to be collected with this Obamacare crap? We don’t, the very fact that Congress or anyone else is even asking the question is a farce, No one is enforcing or obeying the laws we have now, making more laws is pabulum for the masses.

whbates on January 17, 2014 at 8:58 AM

It can still be used to help elect democrats, right? I mean, that’s all the really matters.

BKeyser on January 17, 2014 at 9:11 AM

Maybe the regime could outsource it to China, everything else is going there.

Kissmygrits on January 17, 2014 at 9:12 AM

U.S. directs agents to cover up program used to investigate Americans

There’s no “reform” severe enough for this.

Akzed on January 17, 2014 at 9:14 AM

It’s not so much who holds the data as it is who has access to it. This is a smoke and mirrors move that changes nothing. And it won’t change no matter who is president.

rbj on January 17, 2014 at 9:16 AM

It’s not so much who holds the data as it is who has access to it. This is a smoke and mirrors move that changes nothing. And it won’t change no matter who is president. rbj on January 17, 2014 at 9:16 AM

Placing third parties in charge of storage adds many thousands of new people with access to the mix.

“Not all access is authorized,” -Ed Snowdon.

Akzed on January 17, 2014 at 9:18 AM

Anyone think it’s a coincidence that we found out the NSA was collecting data on everyone about the same time we found out the healthcare.gov website was one giant security hole that just happens to collect very personal data on everyone who goes there? (And sooner or later, by hook or by crook, EVERYONE will be going there…)

CurtZHP on January 17, 2014 at 9:20 AM

Is it just a way to funnel more money to corporations and mega donors? It would be a large government contract, after all, and the Obama admin has no trouble doling those out to its friends.

HakerA on January 17, 2014 at 9:24 AM

Why outsource this to a Canadian company cause that worked so well before…Oh Wait!

workingclass artist on January 17, 2014 at 8:33 AM

There are rumors out there that they already outsource some of the raw data, unchecked by the US Gov to the Brits and Israelis.

Anyway, for advocate positions I vote for McMillan and Wife to protect the data. McCloud can cover guarding all the data in the “cloud”.

oryguncon on January 17, 2014 at 9:26 AM

The only reforms needed are to make sure no one like Snowden is ever hired again.

rlwo2008 on January 17, 2014 at 9:47 AM

The only reforms needed are to make sure no one like Snowden is ever hired again. rlwo2008 on January 17, 2014 at 9:47 AM

Ok, here’s hoping that all the data held on you goes public.

Akzed on January 17, 2014 at 10:01 AM

Outsourcing to a “third party” could mean;

1. Handing it to a private contractor, who might then quietly let anyone outside of government have a lot of data on Americans, for the right price (and with suitable compensation to the Democratic party).

If this course is chosen, expect telemarketers and other fast-buck artists to be calling and spamming you forever. Usually with an attached and not-so-veiled threat of “If you refuse to do business with us it will make Your Government very unhappy with you”.

2. Creating an entirely new agency within the government whose purpose is to collect and disseminate the data to the rest of the government.

Naturally there will be rules restricting the data’s distribution and use. Equally naturally, those rules will be ignored whenever those in power see a personal or political advantage in doing so.

Either way, the American people are basically told, “drop trou and assume the position, peasant”.

clear ether

eon

eon on January 17, 2014 at 10:24 AM

NSA reforms: Keep the database, but somewhere other than NSA?

Yeah, let’s let the IRS or the DNC keep the records. That’s the ticket.

I sure wish an Edward Snowden that has access to Obama’s personal history would send a few USB Flash drives to the media that doesn’t cheerlead and propagandize for Obama.

iamsaved on January 17, 2014 at 10:27 AM

“…Somewhere other than NSA?”

Like Axelrod’s home PC?

NoPain on January 17, 2014 at 10:40 AM

Carney! Move that mirror! Too much light in here! “sorry sir..smoke got in my eyes”

countmein on January 17, 2014 at 11:34 AM

The DNC?

Murphy9 on January 17, 2014 at 11:41 AM

Keep the database, but somewhere other than NSA?

Bwahahahahahahaha

Like the Mafia policy of getting the body outta the trunk and and into the desert … huh

Roflmmfao

donabernathy on January 17, 2014 at 11:52 AM

You do not pre-collect data on those who are presumed innocent.

Anywhere.

ajacksonian on January 17, 2014 at 12:10 PM

Moving the data to a 3rd party data center(s) does two things:

1) Retains the NSA’s power to abuse our rights by data-mining.
2) Creates “plausible deniability” on the part of politicians when (not if) the data is abused. They will blame “the video”.. the 3rd party holding the data.

Bottom line, the violation of our rights continues and given this government escalates.

Also, someone at the EFF and/or ACLU should look into the impact on an individual’s contract with telephone/data carriers as they many not allow a 3rd party to retain this data for the government.

Won’t happen though. Because rule of law is dead.

DrDeano on January 17, 2014 at 12:18 PM

The picture for this thread shows Eric Holder, Attorney General of the United States, with Obama in the background….covering Holder’s @$$. Holder is the 1st Attorney General in U.S. history to ever be Censured. Of course, he should have been charged and sentenced with 3 Felony Counts of Perjury before Congress for his false testimony dring the Fast and Furious investigation. The only reason he is NOT in the same jail cell Scooter Libby was in is because Holder’s handpicked DOJ actually REFUSED to press the charges against their boss — the DOJ REFUSED TO DO THEIR JOB! This left a BI-PARTSAN Congress with taking the only option within their power to use – they Censured Holder.

Of course, Holder went on to perpetrate another Felony Count of Perjury before Congress in the case of the DOJ spying on media editors, reporters, and their parents. Holder initially told Cogress he knew nothing about it…before he finally he was the one who ordered it and how he went ‘Judge Shopping’ to find 1 judge who would approve it.

Despite calls for Obama to fire a CRIMINAL Atty Genral to avoid the hypocricy of a criminal being in charge of the DOJ, Obama has refused to do so.

easyt65 on January 17, 2014 at 1:23 PM

Nobody seems to even be questioning the need for gathering and storing the raw data for long periods of time. Old call detail data and old email and text headers are not much good for analyzing CURRENT threats. This data collection program has not a lot to do with fighting ‘terrorism’, and more to do with tracking behavior and movements of ordinary Americans.

Why can’t we have a decent conversation about the whole program, instead of just about who stores the data?

jclittlep on January 17, 2014 at 2:00 PM

The first option noted in the article is the only one which is Constitutional. Require the companies who generate the metadata to retain it for a dozen years, with government access only via legal subpoena. Any, and I mean ANY other method of collecton/retention of that data violates the 4th amendment. Private information of American citizens should never be open to undeclared search. Period.

Freelancer on January 18, 2014 at 11:58 AM