NSA shuts down its controversial phone data collection: So now what?

NSA shut off its collection of U.S. telephone data

The National Security Agency shut off its massive collection of U.S. telephone records at 11:59 p.m. EDT Sunday, shortly after a rare weekend session in the Senate failed to craft a measure to extend the program. Senators moved forward with a House-passed bill that would reform the NSA's surveillance program. But the new program, if adopted, wouldn't be able to start for several days.

Here's what you need to know:

What’s the NSA doing now?

The NSA can no longer collect and store records from Americans' phone calls. The spy agency has locked down access to the billions of phone records it has archived on government servers. The NSA won't delete the so-called metadata, however, but has installed monitoring software designed to set off alarms if government officials try to access the data. The records include the numbers called from each phone and the length of each call, but not the conversations.

How would the new program work?

If the House bill becomes law, the NSA would be allowed to ask phone companies for call data on U.S. phones that may be linked to a known terrorist or terrorist group. Those requests would be vetted by the Foreign Intelligence Surveillance Court, which operates in secret. The NSA would no longer be able to vacuum up the phone records in bulk and would have to rely on phone companies to store the toll records themselves. Most companies keep the toll records for 18 months.

When would that start?

The NSA would be given six months to transition to the new method of collecting phone records. In the meantime, the NSA would be allowed to temporarily restart its bulk collection program until the new method is up and running. Intelligence officials said that it would take them several days to restart bulk collection once the president signs the bill into law. The Senate could vote on the bill, called the USA Freedom Act, as soon as Tuesday.

Since the NSA program is turned off, is there a higher risk of terrorism?

Depends on who you ask. Critics say the NSA program hasn’t stopped a terror plot. Intelligence officials have made about 300 searches of the enormous database each year, and say the results have been useful in finding links between potential suspects in terrorism and espionage investigations. For now, that access is closed off. If the Senate approves the House bill, the NSA will be allowed to retroactively collect the phone records that it has missed during the hiatus and use them during the transition period to the new program.

Can phone companies refuse NSA requests for data if the House bill becomes law?

No, although some may try. If the USA Freedom Act passes, the NSA would need to get an order from the Foreign Intelligence Surveillance Court to access records held by telecommunication companies. The NSA would have to convince the court that the request is narrowly drawn and related to terrorism or espionage investigations. If companies refuse, they could be in violation of a court order. Some companies may fight the requests anyway, or tell the NSA that they don't keep such records. Some companies that sell unlimited calling plans have argued that they don’t need to keep toll data on customers’ calls. Intelligence officials are concerned that some companies may try to opt out so they can advertise that they don’t provide data to U.S. spy agencies.

Do intelligence officials support the proposed changes?

Yes. Director of National Intelligence James R. Clapper and Atty. Gen. Loretta E. Lynch told House leaders in a letter last month that the House bill “preserves the essential operational capabilities” of the NSA program. If USA Freedom Act becomes law, telephone companies will receive government money and technical specifications to comply with the requirements. The NSA and the phone companies will have six months to erect the new system before they shut down the current data pipelines.

Is six months enough time?

The NSA says yes. Making the switch is “achievable” in six months “with provider cooperation,” NSA director Michael S. Rogers said in a letter last month to Senate Majority Leader Mitch McConnell (R-Ken.) and Senate Minority Leader Harry Reid (D-Nev.) But McConnell and some other Republicans are not convinced. They want to extend the transition period to one year. They also want to require telephone companies to notify the government if they begin storing data for less than 18 months, as rules currently require. “We should take some common-sense steps to ensure the new system envisioned by that legislation -- a system we would soon have to rely upon to keep our country safe -- will, in fact, work,” McConnell said on the Senate floor Monday.

Will the House agree to any changes?

Maybe. House leaders have been reluctant to tinker with the fragile bipartisan compromise achieved in their bill, but on Monday didn’t rule out any changes from the Senate. “I have a real concern of the safety of the country right now,” said House Majority Leader Kevin McCarthy (R-Bakersfield). “My only advice is just to get the USA Freedom Act done, as soon as possible, and get that to the president’s desk.”

What else would the USA Freedom Act do?

The bill creates a panel of independent advocates for the first time to argue on matters of privacy and civil liberties before the Foreign Intelligence Surveillance Court. The court, which meets in secret, now hears only from government lawyers. The bill also requires that significant legal rulings from the court be made public. In addition, it allows companies and individuals, for the first time, to challenge the gag orders that routinely come with data demands from the government under so-called national security letters.

Did other authorities expire on Sunday?

Yes, three other provisions in the Patriot Act also expired. One makes it easier for the FBI to collect business records, such as credit card and banking data, in terrorism cases. Another authorizes "roving wiretaps" that permit the FBI to eavesdrop on every phone used by a terrorism suspect without obtaining a warrant for each device. As of Monday, officials can use those powers in ongoing investigations but not in new cases. The third provision is aimed at so-called "lone wolf" cases. It lets the FBI seek a court order to wiretap a suspect they think is engaged in terrorist activity but who isn't linked to a specific terrorist group. That authority has never been used, but intelligence officials consider it potentially valuable because Islamic State militants use social media to urge supporters to launch independent attacks at home. All three provisions would be reinstated if the Senate passes the House bill.

Why is this happening now?

In June 2013, NSA contractor Edward Snowden leaked reams of classified documents to news organizations about NSA surveillance programs around the world. Intelligence officials argued that the disclosures caused immense harm to U.S. capabilities, and the Justice Department charged Snowden -- who fled to Russia, where he now lives -- with espionage and other crimes.  The NSA began collecting domestic phone data in secret after the terrorist attacks on Sept. 11, 2001. The Foreign Intelligence Surveillance Court specifically authorized the program in 2006 after amendments to the Patriot Act were signed into law. But those powers were set to expire every three years unless Congress took action to renew them. The Senate's failure to act on Sunday marks the first major legislative rebuff of domestic surveillance operations in the post-Sept. 11 era. The proposed new law also marks the only legislative reform to result from the Snowden leaks.

Staff writer Lisa Mascaro contributed to this report.

Twitter: @ByBrianBennett

Copyright © 2016, Los Angeles Times

UPDATES

1:19 p.m.: This article has been updated to add three questions: "What else would the USA Freedom Act do?,” “Did other authorities expire on Sunday?” and “Why is this happening now?”

10:45 a.m.: This article has been updated to add three questions: "Do intelligence officials support the proposed changes?," "Is six months enough time?" and "Will the House agree to any changes?"

9:05 a.m.: The article has been updated to add two questions: "Is there now a higher risk of terrorism?" and "Can phone companies refuse NSA requests if the House bill becomes law?"

This article was originally published at 8:05 a.m.

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