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Would a 'third party' protect your phone data better than the NSA?

President Obama wants to limit NSA surveillance of US citizens. One suggestion is that a third party – perhaps telecommunications company themselves – store such metadata for NSA use.

By Staff writer / January 19, 2014

From left, FBI Director James Comey, CIA Director John Brennan, and Director of National Intelligence James Clapper sit together before President Barack Obama spoke about National Security Agency (NSA) surveillance Friday at the Justice Department in Washington.

Carolyn Kaster/AP

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There’s another major shoe left to drop on President Obama’s plans to revamp National Security Agency spying, which – thanks to former NSA contractor Edward Snowden, now avoiding US prosecution in Russia – has roiled the intelligence and civil liberties communities.

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That’s who, exactly, will look after the millions and billions of bits of phone and Internet metadata the NSA vacuums up from unknowing US citizens as it looks for enemies who might want to do harm to those same citizens and their government.

As recommended by the Review Group on Intelligence and Communications Technologies, which reported to Obama in November, that would be some third party – including, perhaps, telecommunications companies themselves – which would hang on to the data until ordered by a court to provide it to the NSA for sifting and analysis.

“The current storage by the government of bulk meta-data creates potential risks to public trust, personal privacy, and civil liberty,” according to the review panel’s report.

In his big NSA speech Friday, Obama didn’t go beyond that, but he did warn that shifting data to a third party doesn’t necessarily solve the problems of intelligence over-reach and diminished public trust.

"Any third party maintaining a single, consolidated database would be carrying out what is essentially a government function with more expense, more legal ambiguity, and a doubtful impact on public confidence that their privacy is being protected," he said.

And that’s not all, some critics of the Obama administration’s approach to intelligence collection warn.

“Divorce lawyers are going to have a heyday. Private detectives on any civil matter anywhere in the country are going to have a heyday,” Rep. Mike Rogers, (R) of Michigan, who chairs the House Intelligence Committee, said on CBS’ “Face the Nation” Sunday. “The companies tell us they will be deluged with warrants on these telephone records that the companies can't sustain. And they're there to provide service to their customers, not work for the government.”

This whole question of third parties and data collection may be answered more clearly when Attorney General Eric Holder appears before the Senate Judiciary Committee on Jan. 29.

“We are going to ask him a lot of questions, because a lot of it was between what he and the head of national intelligence have to work out,” committee chairman Sen. Patrick Leahy (D) of Vermont said on “Fox News Sunday.” “There’s going to be a lot of questions from both Republicans and Democrats who are concerned we are going too far in to the privacy of Americans.”

Civil liberties organizations generally had at least some praise for what Obama outlined in his NSA speech Friday.

They’re happy, for example, that government metadata collection will now be allowed to go just “two hops” instead of “three hops.” That means looking at the phone data of the target of investigation as well as at the data of the numbers that target contacted instead of going one more degree of separation – “three hops” – which had been allowed under pre-Snowden policy.

But if anything, according to many observers, Obama is tending more toward national security than he is toward privacy protection in his new surveillance policy.

Also speaking on “Fox News Sunday,” former NSA Director Michael Hayden said Obama is “fundamentally” preserving the surveillance program as it existed under former president George W. Bush.

“The president has embraced it,” Mr. Hayden said. “He is willing to shave points off of flexibility, add administrative burdens, add oversight, but the objective is to keep on doing what he's doing."

Sen. Dianne Feinstein (D) of California, who chairs the Intelligence Committee, essentially agrees, predicting that metadata collection will continue despite political opposition and public wariness.

“A lot of the privacy people, perhaps, don't understand that we still occupy the role of the Great Satan,” Sen. Feinstein said on NBC’s “Meet the Press.” “New bombs are being devised. New terrorists are emerging, new groups, actually, a new level of viciousness. We need to be prepared.”

Both Rep. Rogers and Sen. Feinstein suggested Sunday that Snowden may have been helped in revealing a trove of secret NSA data by Russian intelligence services.

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