NSA Surveillance: Over in 2014?

A look ahead at NSA reform and new privacy concerns on the horizon.

National Security Agency Director Keith Alexander, left, and Director of National Intelligence James Clapper testify before the House Select Committee on Intelligence in Washington, D.C, on Oct. 29, 2013.
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In March, Director of National Intelligence James Clapper sat before a crowded room of lawmakers on Capitol Hill and told them, no the U.S. government was not snooping on its citizens.

Three months later, a contractor for the National Security Agency leaked documents to reporters at the Washington Post and the Guardian detailing massive and widespread surveillance of the telephone and email records of millions of Americans and foreign leaders such as German Chancellor Angela Merkel.

Now, as 2013 comes to an end, the revelations of Edward Snowden – living in exile in Vladimir Putin's Russia – appear likely to result in reform.

A five-member review panel appointed by the White House concluded Dec. 18 the dragnet collection of American phone records "should be terminated as soon as reasonably practicable." Two days earlier U.S. District Court Judge Richard Leon said the same, ruling the program likely violates the Fourth Amendment, which protects Americans from unreasonable searches, and that the government has offered no proof it helped prevent terror plots.

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In the House of Representatives, the USA Freedom Act drafted by Rep. Jim Sensenbrenner, R-Wis., now appears to have enough support to pass. It would end the indiscriminate phone record collection, strengthen congressional oversight and reform the secret Foreign Intelligence Surveillance Court. Sen. Patrick Leahy , D-Vt., is pushing a companion bill in the Senate. Eight House co-sponsors have shifted their stance since July, when they voted against a proposed amendment to the defense appropriations bill to end the storage of telephone metadata for five years at NSA warehouses.

But as the foundation crumbles for the phone record program, new concerns may arise in 2014.

The White House advisory panel recommended that telephone companies, such as Verizon and AT&T, voluntarily retain phone metadata records for at least two years that can then be acquired by the NSA for specific investigations. If the voluntary retention of this data is not effective, the advisers said, "implementing legislation might be required."

But that idea, which appears to be one panel recommendation under serious consideration, worries privacy advocates.

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The American Civil Liberties Union, for example, fears increased corporate retention of phone data would actually reduce Americans' privacy.

"You don't want to amplify out the privacy intrusions beyond where they are now," says Michelle Richardson, legislative counsel at the ACLU.

If companies were forced to retain call records for longer than they currently do, Richardson says, that would eliminate an important "de facto civil liberties protection." The records would become available not only to the NSA, but could also be acquired for use in civil and criminal cases, she notes.

"You need to really keep an eye on this data retention idea to make sure it doesn't materialize and possibly become worse," Richardson says.

"It's really a throw-away recommendation," she says, to salvage an "absolutely worthless" program. "The obvious conclusion is to just stop the program and not even worry about data retention."

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Another factor in the year ahead will be major U.S. technology companies, which are forcefully pushing for changes to NSA surveillance, fearing market losses abroad and damage to customer trust. In December eight companies – including Google, Microsoft and Yahoo! – formed an advocacy campaign called "Reform Government Surveillance," urging tighter controls on how the government collects personal information.

Much will depend on President Barack Obama, who has the power to veto any legislation aiming to reform the NSA. Obama has publicly defended NSA surveillance programs, but plans to announce sometime in January if he will support any recommendations in his White House panel's 303-page report.

"I have confidence in the fact that the NSA is not engaging in domestic surveillance or snooping around," Obama said at a Friday press conference. But, he added, "there may be another way of skinning the cat."