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Is Obama's proposal to end NSA bulk collection of phone records really a privacy win?

President Obama plans to call for an end of NSA bulk collection and storage of phone record metadata, but is that a win for privacy or a way to legalize such spying?

A White House senior official said President Obama will call for an end to NSA bulk collection and storage of phone records. The Obama administration wants phone companies, not the NSA, to be responsible for storing bulk phone record metadata and for quickly handing over retained records if the government supplies a new type of surveillance court order. But does that actually mean that millions of people's digital communications, phone conversations, will no longer be under permanent mass surveillance just in case the government needs to track a suspected terrorist?

The New York Times reported that the Obama administration will ask the FISA court to renew the NSA bulk phone records program for "at least one more 90-day cycle." Officials said the government wants a new type of surveillance court order that would require phone companies to quickly hand over records in a "technologically compatible data format, including making available, on a continuing basis, data about any new calls placed or received after the order is received." The government could also "seek related records for callers up to two phone calls, or 'hops,' removed from the number that has come under suspicion, even if those callers are customers of other companies."

The NSA stored phone records for five years, but phone companies will store the data for 18 months; that's the same period of time as current storage requirements, yet there's a sneaking suspicion that phone companies may increase our bills and actually pass the cost of spying on us to us.

At first blush, Obama's proposal may seem like a baby step in the right direction; however it could be construed as a step toward legalizing mass surveillance. NYT's Charlie Savage added, "The administration's proposal would also include a provision clarifying whether Section 215 of the Patriot Act, due to expire next year unless Congress reauthorizes it, may in the future be legitimately interpreted as allowing bulk data collection of telephone data."

The NSA has been using Section 215 of the Patriot Act to justify its mass surveillance of phone records, yet the collection is likely illegal no matter how the government chose to interpret Section 215. "It claimed that Section 215, which allows the FBI to obtain court orders for business records deemed 'relevant' to an investigation, could be interpreted as allowing the NSA to systematically collect domestic calling records in bulk."

It may seem cynical, but it might serve you well to remember that the government's surveillance seems almost limitless. Metadata will reveal a great deal of very personal information, but not as much as recording the actual phone conversations. For example, with the "voice interception program" called MYSTIC and its voice "retrospective retrieval" tool called RETRO, the NSA has "swallowed a nation's telephone network whole," according to The Washington Post. "With up to 30 days of recorded conversations in hand, the NSA can pull an instant history of the subject's movements, associates and plans. Some other U.S. intelligence agencies also have access to RETRO."

Although the NSA's surveillance system is "capable of recording 100% of a foreign country's telephone calls," an anonymous official told The Post that "large numbers of conversations involving Americans would be gathered from the country where RETRO operates."

Large numbers, or all conversations? Foreign countries, or America? Think back to the Boston bombing, when law enforcement was trying to determine what Katherine Russell, the widow of Tamarlan Tsarnaev, knew about the bombing. CNN host Erin Burnet asked former FBI counterterrorism agent Tim Clemente if there is a way, other than voicemail, to know what was said during a phone conversations.

Clemente: We certainly have ways in national security investigations to find out exactly what was said in that conversation. It's not necessarily something that the FBI is going to want to present in court, but it may help lead the investigation and/or lead to questioning of her. We certainly can find that out.

Burnett: So they can actually get that? People are saying, look, that is incredible.

Clemente: No, welcome to America. All of that stuff is being captured as we speak whether we know it or like it or not.

The next night, CNN's Carol Costello asked Clemente, "You said that if Katherine Russell does not divulge the contents of this phone call that the FBI had other methods of finding out what was said. What did you mean by that?"

Clemente: Well, on the national security side of the house, in the federal government, you know, we have assets. There are lots of assets at our disposal throughout the intelligence community and also not just domestically but overseas. Those assets allow us to gain information intelligence on things that we can't use ordinarily in a criminal investigation, but are used for major terrorism investigations or counter intelligence investigations.

Costello: You're not talking about voicemail, right? What are you talking about exactly?

Clemente: I'm talking about all digital communications are -- there's a way to look at digital communications in the past. I can't go into detail of how that's done or what's done. But I can tell you that no digital communication is secure. So these communications will be found out. The conversation will be known.

They never actually said it was the NSA's surveillance capabilities that would allow the FBI to replay a conversation from the past, to listen in as if it had a time machine. In theory, RETRO is about collecting intelligence on foreign targets; maybe it's another program that disregards the Fourth Amendment. While Obama's proposal to stop the NSA from collecting and storing phone record metadata is better than nothing, as it should be ended, it's not the only proposal out there.The Guardian claims the House's NSA bill "could allow more spying than ever."

Do any of these proposals actually mean that millions of people's digital communications, phone conversations, will no longer be under permanent surveillance just in case the government needs to track a suspected terrorist? I hope so, but the answer is likely a big fat NO. Sadly, as Clemente said, "Welcome to America."

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