A crucial moment in the debate this past month over the National Security Agency’s access to Americans’ phone records in terrorism investigations came on May 20, two days before Senate Majority Leader Mitch McConnell tried to squelch House legislation that would restrict that access.
Writing to the Kentucky Republican as well as Democratic Leader Harry Reid of Nevada, NSA Director Michael S. Rogers said the House plan — to shift the record searches back to the phone companies — was achievable within the six months prescribed in the bill. “Upon passage of the law, we will work with the companies that are expected to be subject to orders under the law by providing them the technical details, guidance, and compensation to create a fully operational query,” he wrote.
To advocates of the bill, known as the USA Freedom Act, that was irrefutable evidence that the system envisioned in the bill — law enforcement agencies going, with warrants, to the phone companies to find out whom suspected terrorists had called — would work. And now that the bill is law — the Senate passed it on June 2 and President Barack Obama signed it later that day — that will be tested.
But there’s plenty of reason to think it won’t work.
The system will require the NSA to convince phone companies over the next six months to install software that will allow for instantaneous searches of their call records. And Rogers said in his letter that was contingent on “provider cooperation.”
But nothing in the legislation requires providers to cooperate, and they have plenty of incentives not to. “There will be a race to the bottom to market the data in a way that says to people: ‘Sign up with us and your data will be safe from the government,’” said Susan Collins, a Maine Republican who sits on the Senate Intelligence Committee.
A spokeswoman for the United States Telecom Association declined to comment about the providers’ plans, but it’s made it clear to senators it’s not keen on doing intelligence work for the government. McConnell said one company, the identity of which is classified, told Congress it was “not prepared to commit to voluntarily retain documents for any particular period of time pursuant to the proposed USA Freedom Act if not otherwise required by law.”
McConnell’s ally in his campaign to stop the overhaul, Intelligence Chairman Richard M. Burr of North Carolina, said adding a data-retention requirement for the phone companies to the bill would prompt such strenuous objection that he wasn’t even willing to try. The amendment he and McConnell proposed, unsuccessfully, said the providers would have to inform Congress if they changed their existing retention policies.
It’s likely the NSA will have trouble working with the phone companies under the new system because it had trouble working with them under the old system, when it held the records.
In a classified briefing for senators on May 12, FBI Director James B. Comey and the NSA’s Rogers said the NSA’s database had big gaps because of technical problems and the increasing prevalence of flat-rate calling plans that require no tabulation of calls. The gaps so alarmed Republican Sen. Bob Corker of Tennessee that he said, “You are going to see people on both sides of the aisle pushing, wondering why not more data is part of the database that is used to protect our citizens.”
The briefing didn’t have the effect Corker expected, especially after Rogers’ letter. Senate supporters of the USA Freedom Act cited the letter repeatedly to rebut McConnell’s request that they approve an amendment to the bill extending the transition from NSA storage of the phone records to phone company stewardship to a full year from the six months the bill prescribed. “The NSA director is as knowledgeable about this subject as anybody in this chamber, and he says we can go forward with it,” said Vermont Democrat Patrick J. Leahy, in urging colleagues to vote down the amendment, which they did.
It was a hard pill for McConnell to swallow and he and his allies set out to rebut it. Collins emphasized how cumbersome it will be to replace a carefully regulated system at the NSA, handled by just 34 trained agents with layers of oversight, with one in which the agency would have to go to “1,400 telecom companies, 160 wireless carriers, which potentially will involve thousands of people” to get the phone records.
Another Intelligence Committee member, Republican Dan Coats of Indiana, wondered if it was feasible to conduct the necessary background checks and grant security clearances to phone company employees who would receive inquiries from the government.
Such a system, they argued, might prove too balky and slow to catch the next terrorist attack.