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 One complication arises from the popularity of flat-rate or
unlimited calling plans, which are used by the vast majority of
Americans.
While the Federal Communications Commission requires phone companies
to retain for 18 months records on "toll" or long-distance calls,
the rule's application is vague for subscribers of unlimited phone
plans because they do not get billed for individual calls.
That could change if the Obama administration pushes through with a
proposal to require carriers — instead of the NSA — to collect and
store phone metadata, which includes dialed numbers and call lengths
but not the content of conversations. Under the administration's
proposal, the phone companies would be required to turn over the
data to the NSA in response to a court-approved government request.
U.S. officials said the carriers might be forced to create new
mechanisms to ensure that metadata from flat-rate subscribers could
be monitored. They said these issues will require further discussion
between the White House, Congress and industry.
"These are very complex systems," said one industry source familiar
with data storage policies. "I doubt there are companies out there
that have a nice, neat, single database that can tell you how long
records are kept universally."
To great fanfare last month, the Obama administration unveiled a
proposal to end the NSA's bulk collection of millions of records of
phone calls. But the announcement glossed over key practical issues
in implementing the new procedures.
The potential gap in records for flat-rate subscribers, as well as
the telecommunications companies' strong opposition to onerous data
retention requirements, underscores the still-fluid nature of the
NSA reforms.
"We applaud these proposals to end Section 215 bulk collection, but
feel that it is critical to get the details of this important effort
right," Verizon Communications Inc General Counsel Randal Milch said
in a blog post last week, referring to Section 215 of the Patriot
Act, the law that authorized the NSA program.
"At this early point in the process, we propose this basic principle
that should guide the effort: the reformed collection process should
not require companies to store data for longer than, or in formats
that differ from, what they already do for business purposes," Milch
wrote.
Obama's proposal, whose full details have yet to be formally
released, is a response to public outcry over revelations by former
NSA contractor Edward Snowden about the spy agency's bulk collection
of phone records.
A senior Obama administration official said: "As questions arise
with respect to the proposal, we look forward to working through
them with Congress and relevant stakeholders."
CHANGING BUSINESS NEEDS
One former senior U.S. official said that because of the growing
popularity of unlimited-calling plans, over the years the NSA
program ended up collecting less and less of the metadata it was
legally authorized to acquire.
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This former official, and a non-government expert who had access to
details of the NSA program, said that the agency recently had only
been collecting 25 percent to 33 percent of the total U.S. metadata
it was authorized to collect. "The change in the nature of billing
data means that there's a lot less such data than there used to be,"
said Stewart Baker, a former senior official at both the NSA and the
Department of Homeland Security.
Another former U.S. official said he believed phone companies were
still obliged to supply the NSA with some kind of record of the
metadata other than billing records.
The NSA can request business records from phone companies, and
carriers do generally keep some phone records for business purposes,
such as to manage traffic flow in networks or monitor traffic
exchanges with other carriers, said the first industry source.
However, those databases are fluid, complex and rarely
comprehensive, as they are driven by constantly changing network
needs. And that has become a key concern for phone companies in the
proposed changes to NSA surveillance.
"It strips from us the ability to make business decisions as the
technology evolves," the industry source said. "It would cause us to
continue to collect stuff that we don't need."
If NSA wants to search flat-rate subscribers' metadata, it would
only be able to do so on calls going forward from the date that the
search is requested, since no earlier data could easily be
retrieved, officials said.
Under the proposal, the NSA would have to get approval from the
secret Foreign Intelligence Surveillance Court to examine phone data
for information about calls made to or from a U.S. number.
A bill drafted by the House Intelligence Committee would allow the
NSA itself to directly request metadata from a phone company under a
broad authorization from the FISA court. But the court would later
be required to review metadata NSA collected to see if the spying
had been legitimate.
AT&T Inc declined to comment. Sprint Corp said, "We are reviewing
the Obama administration's proposal with great interest and look
forward to seeing additional details."
(Editing by Warren Strobel and Tiffany Wu)
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