updated 09:33 am EST, Wed February 26, 2014
No plan currently agreed upon, shutdown still possible
As directed by the Obama administration, a cadre of federal lawyers have developed a quartet of plans to restructure the National Security Agency (NSA) phone monitoring program. The proposals run the range from officially running operations through the telephone companies with full approval and support, all the way to completely shutting the program down, according to people familiar with the matter.
The Wall Street Journal is reporting that one of the methods presented is forcing the telephone companies to preserve the data, with the NSA serving requests for the data when it needs searches of cell records. The companies would then voluntarily provide the data to the NSA.
This way, the NSA would only get the data that is related to the search, instead of hundreds of millions of other, unrelated phone number (and other data) captures. Both the telecommunication companies and the chairman of the House intelligence committee oppose this plan.
A second reported option is having another agency hold the data other than the NSA, such as the FBI -- but this method would still not guarantee any privacy protection. A third option is handing the program over wholesale to the Foreign Intelligence Surveillance Court, which would assume an expanded role. Judges on the court don't favor having the court assume any more responsibility for the program.
The fourth proposal, a full shutdown in favor of other more traditional (and legal) intelligence-gathering methods, has already been floated by the Obama administration. Shutdown would be accompanied by an increase in investigative efforts (with the resultant increase in funding). In the president's January speech addressing the situation, he suggested that this option could be viable, but that "more work needs to be done to determine exactly how this system might work."
The major drive that forced the review and subsequent proposals was a change to the Presidential Policy Directive authorizing the program. The biggest controversy revolves around the bulk collection of data currently performed by the NSA and other agencies under the Patriot Act, which monitors both innocent and targeted parties in apparent violation of the Constitution.
Recently, criminal defendants have filed requests for the data, which would allegedly prove innocence in prosecution. To date, none of these requests have been fulfilled, with the NSA hiding behind a "national security" defense. Additionally, Albanian immigrant Agron Hasbajrami has been found guilty of funding overseas terrorism. He was informed after pleading guilty to the charge that NSA evidence would have been used against him in trial.
American Civil Liberties Union attorney Patrick Toomey claims that the new filing proves that "warrantless surveillance has played a role in more criminal cases than the government has ever before admitted, and the government has been improperly withholding that fact from defendants for years."