Rep. Schiff Introduces Legislation to Restructure NSA Telephone Metadata Program

Today, Rep. Adam Schiff (D-CA), a senior Member of the Intelligence Committee, introduced the Telephone Metadata Reform Act, which would restructure the telephone metadata program by specifically removing call records from the types of information the Government can obtain under Section 215 of the PATRIOT Act. Instead, records would be obtained on a case by case basis from the telephone companies subject to approval by the Foreign Intelligence Surveillance Court.

Schiff’s proposal mirrors the restructuring of the telephone metadata program recommended by the President’s Review Group on Intelligence and Communications Technologies, as well as changes that Congressman Schiff has been advocating for since before the metadata program was made public. The Review Group’s report stated that having telecommunications firms retain their records “would greatly reduce the intake of telephony meta-data by NSA, and it would therefore also dramatically (and in our view appropriately) reduce the risk, both actual and perceived, of government abuse.”

“For a long time, I’ve been pushing to have the call records held by phone companies and “queried” on a case-by-case basis, instead of the government’s collecting vast amounts of domestic phone records,” said Schiff. “This idea gained new momentum last month with the President’s NSA review panel’s endorsement that restructuring the program is both technically feasible and more protective of the privacy interests of the American people. My legislation would restore the balance between security and privacy by allowing law enforcement and the intelligence community to access records when needed, but also respecting the privacy of Americans by ending government possession of these vast database.”

Schiff’s bill would end the telephony bulk collection program as it is currently constituted, while still allowing the NSA and law enforcement to look at the records as needed for law enforcement and anti-terrorism activities:

• Terminates the existing bulk telephony metadata program.

• Allows the Director of the FBI to make an application to the Foreign Intelligence Surveillance Court requiring a telecommunications carrier to search their call records based on a particular “seed” call record upon showing a reasonable suspicion that the “seed” record is associated with a specific foreign terrorist organization or specific foreign intelligence. The FISC could approve or deny a request. If the FISC approves, a phone carrier would have 12 hours to return the call records to the FBI in the proper format.

• The bill includes a provision for exigent situations in which it is not practicable to wait for FISC approval. Under this provision, the FBI Director would make a determination and order telecommunications firms to search their phone records on an emergency basis with a response required within 6 hours. The FBI would be required to notify the FISC immediately that it had exercised its emergency authority and to seek approval of the orders by the FISC within 72 hours.

• The legislation does not impose any new burden on telecommunications companies to retain phone records.

Schiff has introduced several pieces of reform legislation in addition to proposing changes to the phone metadata program. First, Schiff introduced the “Ending Secret Law Act” which would require the Attorney General to declassify significant Foreign Intelligence Surveillance Court (FISC) opinions, allowing Americans to know how the Court has interpreted the legal authorities created under Section 215 of the PATRIOT Act and Section 702 of the FISA Amendments Act. Second, Schiff introduced legislation to require that the 11 judges on the Foreign Intelligence Surveillance Court (FISC) be nominated by the President and confirmed by the Senate. Finally, Schiff introduced legislation to require the Privacy and Civil Liberties Board to create a pool of attorneys with experience in Fourth Amendment or national security law to argue the side of the public when the government requests a surveillance warrant in the FISA Court.