What the proposed NSA reforms wouldn’t do

All the plans purport to end the bulk phone records collection program, but there are big differences

Ten months after Edward Snowden's first disclosures, three main legislative proposals have emerged for surveillance reform: one from President Obama, one from the House Intelligence Committee, and one proposal favored by civil libertarians.

All the plans purport to end the bulk phone records collection program, but there are big differences – and a lot they don't do. Here's a rundown.

President Obama's proposal

What it would do: As described, the president's proposal would prohibit the collection of bulk phone records. Instead, the government would seek individualized court orders every time it wants American phone metadata. The government would get the data from telecoms, which already keep it for at least 18 months.

The proposal would solidify some changes Obama has already made: For instance, since January, analysts have needed to get court approval before searching the phone records database. Also, NSA analysts have only been able to obtain records from people who are two "hops" away from a surveillance target – a target's friends' friends – rather than three "hops" away. Obama's proposal would make both of those policies law.

What it wouldn't do: It's hard to know. The White House hasn't released the actual text of the legislation, and lawmakers have yet to introduce it in Congress. But privacy advocates do have a lot of questions.

One thing the president hasn't proposed: ending the bulk phone records program now. He could do that without any vote if he simply stopped asking the Foreign Intelligence Surveillance Court to reauthorize the program, as Sen. Patrick Leahy, D-Vt., has suggested.

The secret surveillance court's last 90-day order for Verizon phone records has expired. President Obama reportedly wants the court to renew the program at least one more time, to give Congress a chance to pass new legislation. Until Congress acts, the NSA will continue collecting American phone records in bulk.

Of course, if President Obama were to act unilaterally, another president could later reverse his changes. If Congress passes his proposal, his reforms will have the force of law.

The president's proposal also appears to address only one of the NSA's many surveillance programs. It doesn't seem to change the FISA Amendments Act, which allows the NSA to sweep up foreigners' communications without a warrant. In the process, the NSA "incidentally" collects Americans' communications.

In January, Obama said he would ask the Justice Department to limit the government's authority to use any American communications collected while targeting foreigners. The administration has not offered any details yet. However, even the Senate's biggest NSA critics say the FISA Amendments Act has been an effective counter-terrorism tool, so Congress is unlikely to repeal it.

FISA Transparency and Modernization Act

What it would do: very little to limit surveillance. Introduced by House Intelligence Committee chairman Rep. Mike Rogers, R-Mich., and ranking member C.A. Dutch Ruppersberger, D-MD, this bill represents the wishes of the NSA's biggest defenders in Congress.

The bill nominally bans the government's bulk collection of phone records. Like Obama's plan, telecoms would keep the records, but this in proposal, the government could request the records without a court order.

The bill also says it would prohibit the government from indiscriminate collection of other kinds of data, including "library circulation records," "firearm sales records," and "tax return records." But the government could still use search terms to get the records it wants.

What else it would do: roll back current protections in the law. The legislation would no longer require that the government get a court order before obtaining American records. Instead, the secret surveillance court would review the privacy procedures before the Justice Department collects any records, and the court could also tell the government to stop collecting records after the fact.

Also, under current law, the government needs to show that records are related to foreign terrorism or clandestine intelligence activities. Rogers' bill would change that standard, requiring the government to show that records are for an individual who is associated with a "foreign power" – a broad term that includes terrorist groups, foreign governments and foreign political groups.

If the bill passes, a lot would depend on how the secret surveillance court interprets it. For instance, what kinds of "selection terms" could the government use to search for records? The broader the search terms, the more likely it is that innocent people will get caught in the dragnet.

Finally, Rogers' bill would not amend the FISA Amendments Act. "I don't believe that foreign collection on foreign soil is something that we need to change," Rogers said.

This bill has House Speaker John Boehner's support.

USA Freedom Act

What it would do: A lot. First, the bill's authors, Democratic senator Leahy and Patriot Act author Rep. James Sensenbrenner, R-Wis., say the legislation would end all bulk collection of American records. To do so, they'd narrow the language in the Patriot Act to require that the government only collects records that are " relevant and material" to an authorized investigation. To qualify, an investigation must be related to foreign terrorism or clandestine activities, and the records must directly "pertain" to a foreign power.

The proposal would also close a so-called backdoor loophole that allows the NSA to search its databases for the content of Americans' communications. Under the new bill, analysts would need an individualized warrant to access any domestic content collected "incidentally."

In addition, the lawmakers would also tighten oversight of national security letters, a kind of administrative subpoena that lets the FBI obtain records related to "national security" without a court order. The idea is to make sure that the government can't use the national security letters law to justify bulk collection of American records in the future.

What it wouldn't do: The bill covers a lot of bases and has won the support of the ACLU, the Electronic Frontier Foundation, 142 representatives and 21 senators.

However, some worry that the bill does not unequivocally ban bulk collection of American records. Again, a lot depends on how the Foreign Intelligence Surveillance Court interprets the statute. While this bill's language is narrower than current law, we now know the secret surveillance court has interpreted the Patriot Act very broadly. The EFF has suggested that the bill's sponsors make their intent more explicit.

This bill has by far the most co-sponsors, but its prospects are uncertain – it was introduced in October, and it still hasn't reached the floor.




The vulnerable underbelly of the Chinese rural banks

Lack of liquidity, dodgy loans and the lack of a central government guarantee is a sure fire recipe for a collapse. The question is not whether there will be more runs on small banks like Jiangsu Shenyan Rural Commercial Bank. The question is whether there will be enough of them to metastasize and affect the entire Chinese financial system

Recently something happened that should not have. A bank in China experienced a run. Last month, China had its first bond default. Now rumours started that the Jiangsu Shenyan Rural Commercial Bank was on the verge of collapse. Lines formed outside one of its branches as depositors were desperate to withdraw funds.

The bank did all it could to reassure depositors. It promised to operate 24 hours to serve customers. It piled up stacks of money in the windows to prove it was solvent. The governor of Shenyang County, north of Beijing, promised the depositors that their money was safe. Finally the People’s Bank of China (PBOC) stepped in to assure that they would back up the bank.

The immediate crisis passed, but the problems still persist. The customers of the bank did have cause for concern. A few local credit cooperatives and loan guarantee companies have gone bust in Shenyang this year. They lost a total of Rmb 80 million ($13 million).

It would be easy to brush aside the bank run and the collapse of some lightly regulated rural credit companies. You could look at it as a purely local problem due to mismanagement. It could be dismissed as a tiny part of a much greater whole. Shenyang Bank managed only Rmb 12 billion ($2 billion). This represents just 0.01% of the total assets in the Chinese banking system.

If the problems were merely limited to one town and one bank, there wouldn’t be a cause for concern. But it isn’t. The troubles at Shenyang bank are just the most recent sign of a financial system under stress.

The stress is neither local nor small, because it stems from the same cause. Like every other government, China’s reaction to the 2009 recession was to provide massive stimulus. Unlike other governments, China did not use taxpayer money. It put lending quotas on state owned banks mandating loans mostly to local governments and state owned industries.

But there was another problem. The recession threw 20 million migrant labourers out of work. Unemployed workers returning back to their villages might have caused social unrest. So, the Chinese government, needed a way to get the stimulus money out into rural areas.

In 2009, there were only 100 rural banks, seven rural lending companies and 11 credit cooperatives in China. The number of banks increased ten folds to 1,027 by 2011. The number of rural cooperatives exploded to about 5,000 today. Firms originally began as micro lenders were allowed to become banks, if their non-performing loan ratio was under 2%, and they had profits for two years. In addition, the Ministry of Finance provided subsidies of 2% to healthy rural banks. Since this is China, these new banks provided loans to the lowest levels of local governments.

The rural lending institutions not only proliferated, they grew far faster than their urban counterparts. While the five largest state owned banks, Bank of China, Agricultural Bank, ICBC, China Construction Bank, and Bank of Communications, grew by 270% over the past ten years, the rural banks grew at 440%. They now make up 10% of the total Chinese financial system.

Like other Chinese financial institutions, the rural banks lent to local governments, but ultimately to the wrong local governments. The rural cooperatives and banks provide the bulk of credit to hundreds of millions of local farmers, but they also have close ties to financially strapped local governments below the provincial level. Many of these loans were made again as part of the 2009 stimulus packages. As the loans come due, many of these smaller government entities will have difficulty repaying.

The problem was highlighted by a regulation issued 8th March by the China Banking Regulatory Commission (CBRC). The CBRC’s latest regulation prohibits rural banks from providing fresh funding either directly to local governments or by purchasing investment vehicles issued by them including bonds, bills or trust products. This is going to be a major problem for the local governments since many will need to refinance those loans to keep current.

The size of these rural lenders and their main clients increases exponentially, the probability that they will be allowed to fail. The central government would certainly bail out a large national lender. The top 30 banks might be able to rely on provincial governments. But the smallest lenders are probably out of luck.

But problematic loans are not the only issue that concerns rural banks. They also have problems with the other side of the equation: deposits. Qichun County is in the province of Hubei near the city of Wuhan. It is rural county and its economy is based on growing herbs. It has a population of 1.03 million, but only a fraction of the population still farms. About 80% of the working age population migrates to the coastal cities in Guangdong and Fujian. They don’t bank at the local banks in Qichun. They have debit cards issued from banks in large coastal cities, which allow them to transfer funds back home. The local banks also do not have savings books products.

Without a steady deposit base, rural banks have to rely on the interbank market. The rates in this market have been exceptionally volatile since the People’s Bank of China (PBOC) started tightening interest rates last year.

The interbank market is far more expensive for the rural banks. It is partially funded by new money market products provided by Yu’E Bao, or “Leftover Treasure”. Yu’E Bao was created by internet giants like Alibaba. It’s growth exploded. It now has 81 million depositors and Rmb 500 billion ($81 billion) assets under management. The reason is simple. It gives savers 6% far above the 3.3% capped interest provided by the state banks. Rural banks therefore can tap the interbank markets, but at interest rates that eat into their margins. They cannot take advantage of the capped rates that help subsidize the large state banks.

Lack of liquidity, dodgy loans and the lack of a central government guarantee is a sure fire recipe for a collapse. The question is not whether there will be more runs on small banks like Jiangsu Shenyan Rural Commercial Bank. There will be. The question is whether there will be enough of them to metastasize and affect the entire financial system.


(William Gamble is president of Emerging Market Strategies. An international lawyer and economist, he developed his theories beginning with his first-hand experience and business dealings in the Russia starting in 1993. Mr Gamble holds two graduate law degrees. He was educated at Institute D'Etudes Politique, Trinity College, University of Miami School of Law, and University of Virginia Darden Graduate School of Business Administration. He was a member of the bar in three states, over four different federal courts and has spoken four languages.)


RBI needs to review and issue additional banking licences

RBI must reconsider the present applicants and, possibly, have specific discussions in areas of operation and how soon they can achieve the goal of ensuring opening of branches and making available banking operations in small villages and towns, across the country

After a nine month wait, the Reserve Bank of India (RBI) delivered two babies in the form of approvals, for IDFC and Bandhan Financial Services to start private banks.  This is valid for 18 months within which both institutions have to comply with all the RBI formalities, as laid down, for new banks. Once these are met, a regular banking licence will (or may?) be issued by RBI, until which time, both cannot do any "banking operations" as such!

Effectively, two new banks with "universal" banking operations may start functioning somewhere around April 2016, give or take couple of months! 

IDFC (Industrial Development Finance Corporation) was set up in 1997, based on the Expert Group on Commercialization of Infrastructure Projects, by Rakesh Mohan Panel, based in Chennai, with offices now in Mumbai, Bangalore and Delhi.  During the transition process, most of IDFC's assets will be transferred to the bank, which will be called: "IDFC Bank", now that the approval has been received from RBI.

From what has appeared in the press, IDFC are not likely to grow the loan book in the next 18 months!  Rather, they would concentrate, in the first three years to stabilise, comply and experiment for the work ahead.  In the next three years, IDFC Bank will consolidate, learn and start to prepare for scale of operations ahead; and finally three years will be spent returning to growth and retaining it.

It may be recalled that IDFC issued its initial public offering (IPO) in 2005.  It employs over 500 people, and for the financial year ending March 2013 the total income is reported at Rs8,148 crore with a net profit of Rs836 crore.  The gross loan book amounted to Rs56,895 crore with gross approvals at Rs26,567 crore and a disbursement of Rs17,656 crore. It is heavily concentrated in the infrastructural development projects and operates from four main cities in the country.

What about the ownership composition at the moment? Government owns 17.24% in IDFC while 51.39% is held by foreign interests.  So, when the final licence to operate as a bank is issued to IDFC Bank, the stock-holding will also undergo a suitable change. 

In 2003-04, both Kotak Mahindra Bank Ltd and Yes Bank Ltd were licensed to operate as private banks, and, as we know them today, they are doing well. 

The current guidelines require new banks to set up at least 25% branches in unbanked rural locations with a population up to 9,999 people.  For a start, as far as IDFC are concerned, they have a herculean task before them; first to make a drastic change in their outlook to cater to the needs of the “aam aadmi” by going rural. Second, by retaining the parent IDFC organization, they may continue to do infrastructure financing, which involves crores of rupees, tune themselves to finance smaller operations running to just couple of thousand rupees here and there!  It will be tough going! 

In so far as Bandhan Financial Services are concerned, luckily, they have the inherent advantage of being the largest microfinance institution in the country with 22% market share. Since their inception in 2001, as a credit financing operator, they have enormous experience in empowering women, who form the bulk (55 lakh) borrowers, but whose loan repayment rate of 99.5% speaks well of the organisational acumen.  It appears from the press reports, that Bandhan currently sells priority sector loans to commercial banks.

However, the company currently borrows from commercial banks at 12.5% to 13% and lends it at nearly 23% to these women entrepreneurs’, who gladly pay this rate, considering the whopping rate of 200% to 300% charged by the exploiting moneylenders in the rural areas.  To a great extent, Bandhan has been able to reduce this menace of moneylenders in the Eastern states in the country, where they operate extensively.  Thus, as a commercial bank, they hope to obtain bank deposits at a relatively cheaper rate as this will enable them, in return, to lower their lending rates to these women, who are likely to be their main customers.

And yet, transfer of microfinance business to the proposed new bank is not going to be easy, according to Chandra Sekhar Ghosh, CMD of Bandhan, who hopes to achieve all the essential qualities of good banking by savings, credit, insurance and remittance.  But for Bandhan, which currently operates in 22 States and four union territories, with 12,961 employees, it will not be a difficult task.

RBI governor Raghuram Rajan's assurance that banking licence will now be made available on tap, and that, the rest of the applicants could reapply again for RBI to consider. This assurance may be "soothing" but does not serve the purpose, which, initially, and even now stands unchanged at making "banking service" available to one and all, particularly in rural areas. About 50% to 60% of the people in the country still do not have access to banks.  Even if applications to open accounts are made available in two/ three languages, these serve no purpose because of the literacy factor.  Most money lenders in rural areas, apart from charging exorbitant rates, also get land-ownership documents "signed" by obtaining thumb prints (whoever has this little benefit of ownership), and for rest of the lifetime, the borrower only pays this interest, with loan capital remaining intact!

Anyway, in arriving at the conclusion that both IDFC and Bandhan are the most suitable candidates to set up banks, obviously, the Jalan committee ought to have employed a system of grading (marks?) in assessing the applications.  We do not know the details, but, whatever is the methodology applied, it would appear that there would be at least a few more in the first five or seven "prospective" candidates who are also just as qualified, in terms of their integrity, approach and vision.

While, IDFC has literally a 9-year programme ahead to be able to reach its targeted clients; Bandhan has already a strong base of 55 lakh borrowers in rural areas who repayment track record is admirable.  So, Bandhan has much better chance to succeed in making it possible for "banking facilities" as such to reach rural folks, sooner than later.

Based on the above premise, RBI must reconsider the present applicants and, possibly, have specific discussions in areas of operation and how soon they can achieve the goal of ensuring opening of branches and making available banking operations in small villages and towns, across the length and breadth of the country.

If five institutions are selected, simply in order of grades, with IDFC and  Bandhan being No: 1 and No: 2, RBI could pick No: 3 to No: 7 and make this offer, there would be a giant step forward in making true the hope of banks reaching the rural areas in the next three years.  If the intentions are to go through such longish processes, it will be probably another five-seven years before new banks can come into operation.

RBI needs to rethink on these issue, and they have economists and experts who can modify such proposals to suit the national needs! 

India Post has a terrific advantage of being everywhere, but does not have the required banking expertise.  Why not they be linked with someone like State Bank to be their mentor and after a 7/10 year "understudy'' experience become independent operator?


(AK Ramdas has worked with the Engineering Export Promotion Council of the ministry of commerce. He was also associated with various committees of the Council. His international career took him to places like Beirut, Kuwait and Dubai at a time when these were small trading outposts; and later to the US.)



Dr Anantha K Ramdas

3 years ago

Mr Shah: thanks for your understanding and support. You will agree that if licences are now available on "tap", why not consider the rejected applicants in the first place, as long as they have the basic qualities and integrity to set up banks. Otherwise the whole process will take months on end, and there will be accusing fingers that partiality was done to this or that person/group etc.

If 5 more are licensed to operate, we have better chances for knowing if these applicants are really prepared to go to rural areas and set up banks and making services available to one and all.

Our taps are known to dry all over the country! Give a few more equal opportunities with IDFC and Bandhan and let us see if they can perform.

Let's focus on reaching every village or twon with 9999 people.

As you said, may be the new govt in the centre will have a review of the applicants and decide in one sweep, if the intentions are really to serve the people and eliminate the blood sucking moneylenders!

Suiketu Shah

3 years ago

Agree 100% with the author.Granting to IDFC and Bandhan is not only enough but there are possibly better candidates capable of running better banks who have so far missed out.I suspect we wl head about new license later this yr once BJP comes into powder 20 May

We are listening!

Solve the equation and enter in the Captcha field.

To continue

Sign Up or Sign In


To continue

Sign Up or Sign In



The Scam
24 Year Of The Scam: The Perennial Bestseller, reads like a Thriller!
Moneylife Magazine
Fiercely independent and pro-consumer information on personal finance
Stockletters in 3 Flavours
Outstanding research that beats mutual funds year after year
MAS: Complete Online Financial Advisory
(Includes Moneylife Magazine and Lion Stockletter)