More Convergence on Metadata

On Thursday, I posted this item noting a possible convergence of civil liberties interests and NSA's operational needs in the President's metadata proposal. The basic idea was that the president's proposed system to end bulk metadata collection actually has a big advantage for NSA beyond institutional settlement and legislative legitimacy: greater, more comprehensive coverage of metadata that is now collected in decreasing percentage. Given civil libertarian enthusiasm for ending bulk metadata collection, this seems like an area where the administration might actually produce better operational yield by constructing its program in a fashion more palatable to civil libertarians. Two new data points have emerged in public since Thursday bearing on this hypothesis. The first is the appearance yesterday on CBS's Face the Nation by former CIA and NSA head Michael Hayden, in which he said essentially the same thing. Asked for his thoughts on the reform proposals by both the President the House Intelligence Committee, Hayden  said that they offered NSA the possibility of closing a widening gap in coverage caused by the development of technology (the relevant comment comes at the 4:20 mark): The second data point is a panel I was on Friday at American University, in which I posed directly to Michelle Richardson of the ACLU the possibility that the result of the reform would be greater NSA coverage. Richardson both candidly acknowledged the point and said, rather to my surprise, that it didn't bother her. I'm paraphrasing here, lacking a transcript of her exact words, but she effectively said that the ACLU is fundamentally concerned with having the government not store the data and having good processes for governmental access to it. If the result of implementing those principles is that more data paradoxically becomes available to the intelligence community, that's not a bad trade from her point of view. As I said on Thursday, there are still a great many technical issues on which this apparent convergence could founder. One of them is the question of what form the telecommunications companies would be required to keep the data in. Unless there are some requirements that force the companies to store it in a form that allows easy querying across different companies, the new system will have no advantages for the government over the authority it already has to issue national security letters for telephone billing records. Yet I could imagine civil libertarians and telecommunications carriers balking at the details of record-keeping requirements on grounds that they merely privatize the database that NSA is now holding in its own hands. We're also going to see skirmishes, I'm sure, over whether the FISA court should review individual query requests or merely the procedures under which the government issues orders to the companies and, perhaps more importantly, what the substantive standard of review should look like. That said, I'm pretty convinced at this point that the outlines of a deal are before us, and that it has something big in it for both sides.