On January 17, President Obama promised to end the National Security Agency’s bulk collection of metadata on Americans’ phone calls under “section 215” (which is really section 501 of the Foreign Intelligence Surveillance Act).  He directed the Attorney General and the DNI to present him with options for doing so by March 28.  On that day, the current FISA court (FISC) orders requiring telephone companies to turn over all call metadata to the NSA expire.  For the last eight years, the government has routinely asked the FISA court to renew that authority every 90 days.

In order to fulfill the President’s promise, the government should now let that bulk collection authority expire and not ask the FISC to renew its bulk collection orders.  As described below, the government can maintain the intelligence capability provided by the current program, as the President directed, for at least the next year or so, even if it only seeks much more limited orders from the FISC.

There has been some confusion about whether the President ordered that the metadata “program” be continued.  His speech makes clear that he wants the intelligence “capability” to continue, which he described as “designed to map the communications of terrorists.”  The 215/501 program provides the specific capability to determine what phone numbers have been in touch with a suspected terrorist “seed number” either directly or some “hops” away from that seed number.  That capability, of course, provides only an incomplete map of the communications of suspected terrorists.  The map generated by the telephone metadata program does not include email communications, for example.  (The government says it ended collection of bulk email metadata more than two years ago.)   In addition, the map generated by the current program does not even include all phone communications of the suspect because we now know that the call records program itself does not include 100 percent coverage of all telephone calls made or received.  (Thus, it is hard to credit the government’s claim that the current program allows it to definitively rule out the existence of communications when they don’t show up in the call records data. The question of whether the program actually delivers any useful capability is still to be addressed by both Congress and the courts.)

The limited but allegedly important intelligence capability generated by the current program can be maintained at least for now by the government obtaining orders from the FISC directing the telephone companies to provide the NSA records of any calls to or from any specified number (the first “hop”), where the court finds there is a reasonable suspicion that the number is linked to specific terrorist groups–and to produce the same information for all calls to and from that first set of numbers, that is, the second “hop.”  This solution would implement the President’s determination that the government’s bulk collection of telephone metadata is not necessary at present to protect the national security in light of its potential risks.

There has not been much commentary on the remarkable aspects of the President’s directives in his January 17 speech that government surveillance he views as lawful should be restricted.  His speech built on the crucial recognition in the Report of his Review Group that government collection of personal information on Americans poses significant risks to the democratic process, not just to the privacy rights of individuals.  In accordance with that recognition, the President ordered that the bulk telephone metadata program be limited in three significant ways.  First except in a “true emergency,” the FISA court, not the NSA, must determine that there is a reasonable suspicion that the “seed” number is associated with specific terrorist groups before the NSA can use that number to obtain a list of all numbers in contact with that seed number.  Second, the President prohibited the NSA from collecting such numbers three steps removed from the seed number and restricted its collection to two “hops” away.   These first two limits have now been implemented through orders of the FISA court.  (These limits are not insignificant:  civil libertarians have sought a requirement for judicial findings as a crucial restriction on surveillance and prohibiting a third “hop” limits the data the NSA receives by more than half.  Presidents do not often agree to limit intelligence collection, especially when such collection is legal in their view.)

The government is now reportedly considering options to implement the third restriction ordered by the President: ending government collection of the bulk metadata altogether.  There is considerable discussion and speculation about who should hold such a bulk database if the NSA does not.   Some members of intelligence community apparently told the Washington Post that it would not be possible to maintain the current intelligence capability if the NSA was no longer allowed to collect the metadata in bulk.  Bills introduced in Congress, however, would end bulk collection, including one that the Washington Post reported Representative Ruppersberger is announcing this week.

In the meantime, the current intelligence capability can be maintained without continuing the current (or a new) bulk collection mechanism.   (The President recognized this possibility when he said that “we may also be able to preserve the capabilities we need through a combination of existing authorities, better information sharing, and recent technological advances.”)   Most telephone companies keep call records for lengthy periods of time; the law already requires that some records be kept for 18 months; and the government already has extensive databases of call records – including its 215/501 database reaching back five years as well as other databases created through FBI use of tens of thousands of national security letters and other authorities to collect call records.  The NSA can continue to ask the FISA court to determine whether there is reasonable suspicion that a “seed” number is linked to specific terrorist groups, and if so, the court can approve an order to the telephone companies to provide all call records one and two steps away from the identified seed number.  To the extent that searching for such numbers presents technical difficulties when the seed number is not that of a customer of the telephone company, the NSA can use its extensive resources to address those difficulties.  There is no reason to believe that this approach would result in a significant degradation of the maps of terrorist communications that the NSA has been making with its bulk collection program.

This interim solution can be carried out immediately without any congressional action to implement the President’s promise to end government collection. The President’s direction that the current capability be maintained can be satisfied for now without any new call record retention requirements, simply by accessing the call records already being kept by both the government and telephone companies.

Of course, this interim solution would not resolve broader questions concerning the wisdom or legality of what the NSA is authorized to do with the vast volume of call records it collects (and that it already has) on innocent Americans — including whether the government should be permitted to use the records for “foreign intelligence” purposes far beyond the particular counter-terrorism purposes invoked to justify the collection in the first place.  The courts, Congress and the Executive need to address these broader questions, as well as the legality of the collection programs, as the scheduled mid-2015 sunset of section 215/501 approaches.