Privacy SOS

Obama proposal to store bulk records with private, third party creates more privacy problems than it addresses

As this screengrab from CNN's coverage illustrates, some media organizations are irresponsibly promoting the idea that President Obama's proposed NSA reforms include ending or significantly reforming the phone records dragnet. The Washington Post headline describing Obama's January 17, 2014 speech reads "Obama calls for significant changes in collection of phone records of U.S. citizens." NBC news tells us the President wants to "Take NSA out of storing snooping data." The New York Times, the paper of record in the United States, tells readers "Obama Outlines Calibrated Curbs on Phone Spying."

But is that really true? Did President Obama's proposals include "curbs on phone spying"? Do the proposals "limit bulk collection of telephone records," as CNN claims? In short: not even close. In fact, the President's proposal to shift data to yet another party would compound the privacy invasiveness of the phone dragnet, not ameliorate it.

The current situation goes something like this: The NSA and the FBI collect most or every phone record created in the United States, showing who you called, how long the call lasted, and when you made the call. They store this information in databases accessible, at the very least, to NSA and FBI analysts. Of course, the phone companies that give our data to the government also retain copies of this information for varying periods of time. So under the current framework, there are (at the very least) three major parties that have access to your phone records: your phone company, the NSA, and the FBI.

President Obama has floated the idea of asking yet another party to hold these records. That way, the government can say that it doesn't 'hold' them, but would still be able to search them when it wants to. What practical effect would that have on the privacy interests of hundreds of millions of people in the United States? Arguably, it would be worse than the status quo. It would mean that a private entity, not subject to open records laws like FOIA and therefore largely unaccountable to the public interest, would be given a giant gift in the form of trillions of records detailing the associations and habits of hundreds of millions of people. And I'm willing to bet that among the interested third parties preparing their proposals for big government contracts to run this spy database are war and intelligence contractors like Booz Allen Hamilton, Lockheed Martin, and SAIC.

That doesn't pass the sniff test, and a huge majority of the country knows it. A new poll shows that 53% of the country opposes the dragnet phone records surveillance program, while only 40% supports it. And confusing media coverage notwithstanding, over 70% agree that the President's proposals will make "no difference" in terms of protecting our privacy.

Let's not allow the executive to give the program a facelift, and in the process potentially make it worse. Let's end the dragnet. After we do that, we can move on to discussing the many other critical privacy issues that were entirely absent from President Obama's speech. After all, the phone records program, while a big deal, is really only a small piece of the problem.

© 2021 ACLU of Massachusetts.