Internet Metadata Collection

Cole and Lederman, and Morell, on Review Group Report

By Jack Goldsmith
Monday, December 23, 2013, 4:39 PM

Marty Lederman has a good summary of the highlights of the President’s Review Group on Intelligence and Communications Technologies at Just Security.  And he and David Cole have a lengthy post on what they say is a neglected issue in coverage of the Report: The issue of the proper use by the government of meta-data, as opposed to the issue of who collects and stores the data.  They are right to focus on the use issue.  But I have a prior question about collection and storage.  The Report recommends that telephone meta-data be stored by the telecommunication providers or a private third-party entity, and then be queried by the government under tightened criteria.  I understand the Report’s concerns about the storage of bulk meta-data by the government.  But I do not understand the Report’s implicit assumption that the storage of bulk meta-data by private entities is an improvement from the perspective of privacy, or data security, or potential abuse.

On a related note, one of the Report’s authors, former deputy director of the CIA Michael Morell, said some interesting things yesterday on Face the Nation.  I highly recommend the entire transcript.  Here are some quotes of special note:

I think one of the misperceptions out there at the moment is that the review group did not see value in this [telephone meta-data] program, and what the review group said is-- is, look, the program to date has not played a significant role in stopping terrorist attacks in the United States. But the review group also noted that going forward it is important. . . .

You know in terms of what would have to happen under our recommendations, NSA would have to prepare justification to go to the FISA Court, the FISA Court would have to review that justification and say yes or no. That's probably a two- three- four-day process, right? If the government decides that the telecommunications company should hold this data, then you are probably talking about a couple of more days as the government goes to each one individually. My preference is to create some sort of private consortia that holds all of this data, and so once you have that court order you can go to that private company and get an answer very, very quickly, that's my preference. So I think you’re adding two, three, four days at most. We also said that there should be an emergency exception, so if you have to move quickly you can do so without a court order, perhaps you need the attorney general’s approval and get that court order later. So we don’t think-- we don’t think we have significantly undermined the government’s ability to protect the country. While at the same time we think we have enhanced privacy and civil liberties significantly.