The president said he no longer wants the National Security Agency to maintain a database of such records. But he left the creation of a new system to subordinates and lawmakers, many of whom are divided on the need for reform.
In a speech at the Justice Department, Obama ordered several immediate steps to limit the NSA program that collects domestic phone records, as well as other surveillance practices, which were exposed last year by former intelligence contractor Edward Snowden.
Obama directed that from now on, the government must obtain a court order for each phone number it wants to query in its database of records. Analysts will only be able to review phone calls that are two steps removed from a number associated with a terrorist organization instead of three. And he ordered a halt to eavesdropping on dozens of foreign leaders and governments who are friends or allies.
The changes mark the first significant constraints imposed by the Obama administration on surveillance programs that expanded dramatically in the decade after the Sept. 11, 2001 attacks. But many of the changes could take months if not longer to implement, and already critics from diverse camps — in Congress and outside it — are warning that what he has called for may be unworkable.
Obama is retaining the vast majority of intelligence programs and capabilities that came to light over the past six months in a deluge of reports based on leaked documents. Even the most controversial capability — the government’s access to bulk telephone records, known as metadata — may well be preserved, although with tighter controls and with the records in the hands of some outside entity.
The database holds phone numbers and call lengths and times, but not actual phone call content.
Obama recognized that others have raised alternatives, such as the moving custodianship of the records to the phone companies or an independent third party — and that such plans face significant logistical and political hurdles.
He gave subordinates including Attorney General Eric Holder until March 28 to develop a plan to “transition” the bulk data out of the possession of the government. Existing authorities for the phone records program are set to expire on that date, requiring a reauthorization by the Foreign Intelligence Surveillance Court.
Both in his speech and in the specifics of his plan, Obama straddled competing security and civil liberties imperatives. His proposals are aimed at containing a public backlash triggered by Snowden, but also preserving capabilities that U.S. intelligence officials consider critical to preventing another terrorist attack.
Reaction to Obama’s call to end the phone records collection was mixed and underscored the political challenge he faces in achieving his goal.
The chairmen of the House and Senate Intelligence Committees issued a joint statement focusing on Obama’s remarks that “underscored the importance of using telephone metadata to rapidly identify possible terrorist plots.” Sen. Dianne Feinstein, D-Calif., and Rep. Mike Rogers, R-Mich., added that they have reviewed the existing NSA bulk collection program and “found it to be legal and effective,” indicating they would oppose efforts to end it.
“Ending this dragnet collection will go a long way toward restoring Americans’ constitutional rights and rebuilding the public’s trust,” Sens. Ron Wyden, D-Ore., Mark Udall, D-Colo., and Martin Heinrich, D-N.M., said in a joint statement. “Make no mistake, this is a major milestone in our longstanding efforts to reform the National Security Agency’s bulk collection program.”
Rep. Adam Schiff, D-Calif., a House Intelligence Committee member who opposes bulk collection, said he thought that ultimately the NSA would have to transition to a model in which the government seeks data from phone companies with a court order, much as they would have before the program began in 2001.
But many civil liberties groups said Obama failed to advance real reform by leaving open the door to third-party storage of records and data retention mandates.
“He doesn’t commit to ending the bulk data collection of telephone records,” said Anthony Romero, executive director of the American Civil Liberties Union. “He gets close to understanding the concerns, but he backs away from the real reform, which is to end the bulk data collection. He gets to the finish line, but he doesn’t cross it.”
Romero said he was trying to bridge irreconcilable positions: “Clearly this is a president who wants to agree with the criticism of the bulk data collection and retention, and yet wishes to retain that power notwithstanding the serious concerns,” he said. “And you can’t have it both ways.”
John McLaughlin, a former CIA deputy director, said Obama “was trying to find a midway here.” Obama’s dilemma, he said, is responding to dual challenges: the perception that the program might one day be abused, and the reality that al-Qaida and its affiliates are growing stronger. “So as president, he’s got to think, ‘I don’t want to take any chances here.’”
Obama also called on Congress to establish a panel of public advocates who can represent privacy interests before the FISC, which hears government applications for surveillance in secret.
Obama has instructed Holder to reform the use of national security letters — a form of administrative subpoena used to obtain business and other records — so that the traditional gag order that accompanies them does not remain in place indefinitely. But he did not, as has been recommended by a White House review panel, require judicial approval for issuance of the letters.
The president also addressed another major NSA surveillance program, which involves collection of email and phone calls of foreign targets located overseas, including when they are in contact with U.S. citizens or residents. He acknowledged that the information has been valuable, but directed subordinates to develop new protections for the information collected on U.S. persons.
He also said he will order that certain privacy safeguards given Americans whose data is collected be extended to foreigners, including limits on the use of the information and how long it can be kept.
Accompanying his speech, Obama issued a new directive Friday that makes clear the United States will use signals intelligence only “for legitimate national security purposes, and not for the purpose of indiscriminately reviewing the emails or phone calls of ordinary people.” It states that authorities will not collect intelligence “to suppress criticism or dissent” or to give U.S. companies a competitive advantage.
Unless there is a compelling national security purpose, Obama said, “we will not monitor the communications of heads of state and government of our close friends and allies.” Friendly leaders “deserve to know that if I want to learn what they think about an issue, I will pick up the phone and call them, rather than turning to surveillance,” he said.
As he made the case for reforms, Obama also cautioned that “we cannot unilaterally disarm our intelligence agencies.” And he caustically criticized foreign intelligence services that “feign surprise” over disclosures of U.S. surveillance while “constantly probing our government and private sector networks and accelerating programs to listen to our conversations, intercept our emails or compromise our systems.”
He noted that some countries that “have loudly criticized the NSA privately acknowledge that America has special responsibilities as the world’s only superpower ... and that they themselves have relied on the information we obtain to protect their own people.”
Expressing frustration at those who “assume the worst motives by our government,” Obama said at another point in his speech: “No one expects China to have an open debate about their surveillance programs, or Russia to take privacy concerns of citizens in other places into account.”
But he said the United States is held to a higher standard “precisely because we have been at the forefront in defending personal privacy and human dignity.”
The president’s speech comes after months of revelations about the breadth and secrecy of the NSA’s surveillance activities, based on hundreds of thousands of documents taken by Snowden. New revelations based on the documents are expected to continue this year.
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