Could a contractor store all that metadata or is that an inherently governmental function?
The Obama administration is spitballing ideas for surveillance reform.
President Obama has given his advisers a seemingly impossible challenge, and with the deadline fast approaching, they're now turning to the private sector for help.
In a speech last month outlining changes to the controversial surveillance programs, Obama said he wants the National Security Agency to continue mining through phone records for possible terrorists, but he doesn't want the government to hold the call data anymore.
No one is really sure how the government can achieve both goals, but Obama gave Attorney General Eric Holder and top intelligence officials until March 28 to figure it out.
Last week, the Office of the Director of National Intelligence published a request for industry input on the problem. The agency said it wants to investigate whether "existing commercially available capabilities can provide a new approach" to the bulk collection of phone records.
The notice says the government is looking for a way for an outside group to store a "large quantity of data" with "near real-time access" to the records of various providers. The government should only be able to access the data with proper authorization, but the data must be available with 99.9% reliability. The agency said the database must also meet "rigorous security and auditability standards." Interested companies are supposed to submit their ideas as two-page proposals.
The Obama administration will also hear input from privacy advocates on the issue on Tuesday. Representatives from the Center for Democracy and Technology, the American Civil Liberties Union, and the Open Technology Institute plan to meet with intelligence officials to push for stronger privacy protections in the updated program.
The existence of the NSA's phone database was one of the most controversial revelations from the leaks by Edward Snowden. The database includes records such as phone numbers, call times, and call durations for millions of Americans not suspected of any wrongdoing.
In his speech, Obama identified two possible alternatives to government control of the database, but he admitted that both are problematic. The telecom companies could maintain the data themselves, but the government would likely want to impose mandates for how the companies handle and retain the records. The phone companies have no interest in a new regulatory regime for data management, and privacy advocates fear the proposal would turn the companies into agents of the NSA.
Another path would be to create a separate third-party to manage the records and give the NSA access, but Obama expressed concern that the new entity would "be carrying out what is essentially a government function but with more expense, more legal ambiguity, potentially less accountability."
Obama, however, said it may be possible to "preserve the capabilities we need through a combination of existing authorities, better information sharing, and recent technological advances."
"But more work needs to be done to determine exactly how this system might work," he acknowledged.
March 28 is not an arbitrary soft deadline that can be pushed back. It's the day that the government's current permission from the Foreign Intelligence Surveillance Court to operate the program expires. If the Justice Department can't present a new plan to the court by that day, it would have to ask to continue the program as it currently exists—which would be a major humiliation after the president promised substantive reforms.
Michelle Richardson, an ACLU lobbyist who plans to attend Tuesday's meeting with intelligence officials, said she's not sure what technological solutions could allow the NSA to mine through a database it doesn't control. But she said the administration should give up on the program and rely on other authorities to access the phone records of suspected terrorists.
"This program doesn't work, and it collects too much information," she said. "Return to other tools to get phone records—there's a million ways you can get phone records."
Richardson added that she is "still steaming" over news reports Friday that the NSA is in fact collecting less than 30 percent of all phone records.
"Really, they're going to the mattresses over a phone program that doesn't even get cellphones? What is wrong with these people?" she said. "I'm beginning to fully believe that it's just a principled fight over 'you can't tell us what to do.'"