The Obama administration is preparing to unveil a legislative proposal for a far-reaching overhaul of the National Security Agency’s once-secret bulk phone records program in a way that — if approved by Congress — would end the aspect that has most alarmed privacy advocates since its existence was leaked last year, according to senior administration officials.
Under the proposal, they said, the N.S.A. would end its systematic collection of data about Americans’ calling habits. The bulk records would stay in the hands of phone companies, which would not be required to retain the data for any longer than they normally would. And the N.S.A. could obtain specific records only with permission from a judge, using a new kind of court order.
This move is relevant to courts' Fourth Amendment jurisprudence, since two federal courts have reached contradictory rulings on the constitutionality of this program. My post on the decision of the District Court for the District of Columbia ruling that the program is likely unconstitutional is here, and my post on the Southern District of New York's decision that held the program constitutional is here.
If the law that will be proposed ends the widespread collection of telephonic metadata, it may very well render moot the existing challenges to the law. Those hoping for stronger Fourth Amendment protections against government surveillance may be disappointed as a result -- since existing Fourth Amendment law arguably permits the collection of phone-dialing information from telephone companies under Smith v. Maryland. Commentators, and the District Court for the District of Columbia, have argued that this is an outdated view of the Fourth Amendment, since broad surveillance programs may technically comport with Fourth Amendment precedent, but result in the collection of a great deal of personal information. If the challenged law is changed, and if the challenges to the law become moot, then the Fourth Amendment question will remain unanswered.
There are those who would likely argue that this is a good thing from a constitutional law perspective, since courts may be ill-suited to make Fourth Amendment decisions based on rapidly developing technology. The legislature may be better at drafting laws tailored to address wide-ranging surveillance programs without stretching the Fourth Amendment too far.
All of this depends on how far-ranging the White House's proposed change to the surveillance program will be, and whether this proposed change gains enough support to become law. I still have a few questions about what a "new kind of court order" means, when it comes to the government requesting calling records for specific individuals. There is some indication of what this is in another part of the article:
It is still unclear what kind of role the judiciary will play in approving requests for phone number information, and what the standard of suspicion will be in evaluating these requests. But requiring judicial approval would almost certainly mark a significant reduction in information the government directly collects.
In recent days, attention in Congress has shifted to legislation developed by leaders of the House Intelligence Committee. That bill, according to people familiar with a draft proposal, would have the court issue an overarching order authorizing the program, but allow the N.S.A. to issue subpoenas for specific phone records without prior judicial approval.
The Obama administration proposal, by contrast, would retain a judicial role in determining whether the standard of suspicion was met for a particular phone number before the N.S.A. could obtain associated records.
The specifics of this plan should be clearer on Friday, which is the deadline for the Justice Department to release their plan for the collection of metadata, and which is when the Foreign Intelligence Surveillance Court's most recent order authorizing the program will expire.
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