President Barack Obama is moving in the right direction to end the federal government's abuse of its massive collection of telephone records. Speaking at a summit in Europe, Obama said the administration's proposed overhaul would better balance national security with legitimate privacy concerns. The changes would be a good start, but the president should first end the bulk collection of Americans' telephone records rather than continue to invade their privacy while waiting for Congress to approve his reforms.
While the administration has not publicly announced the details, the New York Times reported this week that under the proposal the National Security Agency would no longer routinely collect the data from the millions of phone calls Americans place every day. Instead, that data would remain with the telephone companies, which would have to maintain the records for 18 months, a current industry standard. Authorities could seek a court order forcing the carriers to supply the data quickly and in a usable format, and the government also could obtain records from phones two calls or "hops" away from a number under suspicion.
These changes would better protect the public against the wholesale invasion of privacy that occurs now under the bulk collection program. Officials would have to obtain a judge's order to retain the records, which at least provides a standard for law enforcement to meet. As a practical matter, removing this data from the immediate orbit of the security services and leaving it with the private sector reduces the opportunity for fishing trips and abusive prosecution. The retention requirements for the carriers also is shorter than the five years that the government currently keeps the records.
Obama's proposal, however, still leaves serious questions. While codifying the changes through federal law could keep future administrations in line, why does this administration plan to retain the status quo for months or longer as it works with Congress to change the law? Nothing prevents the White House from narrowing the use of its authority under current law to slow or halt the program. So why condition these changes on reaching agreement with a Congress that hardly sees eye-to-eye on security with the Obama administration?
The proposal leaves silent, at least for now, whether it provides any real sense of due process in the judicial review. What will be the legal standard for granting the government access to the telephone records? Will the public interest be represented by legal counsel in the Foreign Intelligence Surveillance Court to challenge government requests for access to the data? Will the secret court report how often it approves the requests? Rather than keep the program on auto-renew until if and when Congress acts, Obama would be better off halting it.
This debate should not be about how to make the program more politically palatable but whether it serves a compelling national security interest. Negotiations on a framework for the future could compromise privacy by cementing a revised but still broad version of a surveillance program that sweeps up too many law-abiding Americans who have no knowledge this is occurring and no recourse to stop it. The president is headed in the right direction, but he should take bolder action and the conversation about the government's bulk collection of telephone records should be broader than how to refine it.