Obama NSA Reform May Reduce Privacy, Kill Constitutional Challenges

The death of the NSA's bulk phone metadata program wouldn't necessarily be a win for privacy advocates.

President Barack Obama speaks in the East Room of the White House on Jan. 9, 2014, in Washington, D.C.
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President Barack Obama may announce during his Friday speech on mass surveillance reform that he's ending the National Security Agency's bulk collection of phone metadata. If he does, phone records could become even less private and lawsuits seeking a landmark ruling against government surveillance may be dismissed.

In some ways, Obama would kill two birds with one stone by ending the program, an action recommended in December by his five-member surveillance review panel.

The program's termination likely would hamstring the NSA's legislative and courtroom critics while outsourcing the agency's data dragnet to phone companies.

The president openly contemplated the option during a Dec. 20 press conference.

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"It is possible," he said, "that some of the same information that the intelligence community feels is required to keep people safe can be obtained by having the private phone companies keep these records longer and create some mechanism where they can be obtained."

Michelle Richardson, legislative counsel with the American Civil Liberties Union's Washington Legislative Office, told U.S. News last month outsourcing the retention of records might "amplify out the privacy intrusions beyond where they are now."

Obama's panel suggested that metadata currently warehoused for five years by the NSA instead be retained by phone companies. The NSA would need a court order to access the information, but it's unclear if the Foreign Intelligence Surveillance Court would continue to grant broad browsing authority.

If the phone companies are either convinced or compelled to store records for longer periods of time than they currently do, that would eliminate an important "de facto civil liberties protection," Richardson warned. Not only would the NSA be able to review whom you called and when, but participants in a wide range of civil and criminal disputes would be able to as well.

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"I share the same concern, if not horror," said conservative legal activist Larry Klayman, who is suing to halt the NSA program. "You cannot trust Verizon and the other companies."

Klayman said phone companies, which are entitled to payment for complying with government records requests, are "fat and happy" from government contracts and cannot be trusted to protect customers' privacy.

Verizon Wireless currently stores call records and location data for one year, AT&T stores that information for five years, Sprint Nextel does so for 18 months and T-Mobile retains call records up to 10 years and location information for 180 days.

The NSA's collection of phone records is probably the most easily understood of the programs disclosed by whistle-blower Edward Snowden, and it's also targeted by the most lawsuits. Three major lawsuits seek a ruling that could reshape the 1979 Supreme Court precedent used to justify phone metadata collection. Sen. Rand Paul, R-Ky., intends to file a fourth suit.

[READ: Klayman, Former Senator Say NSA May Have Listened to Call]

Legal experts say it's possible those cases against the program would be considered moot if it is terminated.

"Simply stopping the practice does not, by itself, entitle the government to have the cases dismissed," says Douglas Laycock, a law professor at the University of Virginia. "But it gives them an argument, and especially if the practice is clearly banned by executive order, that argument might be good enough to get the cases dismissed."

In the NSA phone metadata cases, "where determining the legality of the practice presents a difficult and sensitive constitutional issue, the courts might be eager to avoid deciding if they can," Laycock says.

U.S. District Court Judge Richard Leon issued a preliminary injunction against the phone program Dec. 16 after deciding in Klayman's lawsuit that the program almost certainly violates the Fourth Amendment. Leon described existing precedent cited by Department of Justice attorneys as outdated, but stayed his decision pending appeal.