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Obama Promises Reform of Bulk Phone Record Surveillance Program

The U.S. president promises to change the NSA’s snooping practices, but falls short of substantial reforms.
January 17, 2014

The National Security Agency will relinquish its database of records of all phone calls made in the United States, President Obama said in a speech at the Justice Department today. The agency will retain its ability to search that data but it will be held elsewhere, under a plan yet to be completed.

Obama’s speech was a response to revelations triggered by documents leaked by intelligence contractor Edward Snowden and to the report from an expert review he commissioned of U.S. surveillance that was completed in December. The phone records program was one of the most significant disclosures in Snowden’s leaks because it represented a previously unknown extension of domestic surveillance (see “NSA Surveillance Reflects Broader Interpretation of the Patriot Act”).

“I believe critics are right to point out that without proper safeguards this program could be used to find out more details about our private lives and open the door to more intrusive programs in the future,” said Obama of the bulk phone records collection program. He pledged “a transition that will end the program as it currently exists and establish a program that preserves the capabilities we need without the government holding this data.”

Obama acknowledged that doing that will be a challenge. The surveillance review panel suggested that a third-party organization might hold the data. “Relying on providers could cause them to change their operations in a way that raises further privacy concerns,” Obama said. “A third party would be carrying out government functions with more expense [and] less oversight.”

A report on how the program could be redesigned will be completed before March 28, the date on which the current version is to be reauthorized by the secret Foreign Intelligence Surveillance court, which oversees NSA programs in relation to applicable U.S. law. In the meantime, the NSA will be restricted to searching its database only with judicial approval and in the case of an emergency. It will also be limited from now on to only searching call records two degrees of separation away from a person suspected of being a threat to national security instead of the current three degrees.

Obama made it clear that he considered the need to collect and search U.S. phone metadata to be nonnegotiable, and played down the sensitivity of the information. “This program does not involve the content of phone calls or the names of people making calls,” he said.

That contrasts with views expressed by former deputy CIA director Michael Morell at a hearing about the surveillance review. He said that phone metadata inherently signaled some information about the content of calls. “There is quite a bit of content in metadata,” he said. “There’s not a sharp distinction between metadata and content.”

Obama also said that he had issued a new presidential directive laying out limits for overseas intelligence, which is generally unrestricted by relevant laws. Those rules include promises that the U.S. only collects intelligence to defend its national security and to fight crime. The directive will also include guidelines on conducting surveillance against foreign leaders and their governments only in cases of “compelling national security reasons,” said Obama.

The new protocol for storage of bulk phone records will require congressional action, as will two other suggestions made by Obama today. One would see Congress establish a panel of privacy and technology experts from outside government to provide guidance to the Foreign Intelligence Surveillance court; another would see additional oversight placed on the use of national security letters—legal instruments used by the NSA and FBI to force U.S. companies to hand over data and bar them from disclosing that fact.

Lobbying efforts by technology companies who wish to be allowed to disclose how many national security letters and other intelligence agency requests for customer data they have received (see “Google, Facebook, and Microsoft Express Sudden Interest in Surveillance”) were rewarded. Obama said that the nondisclosure clauses of national security letters would no longer be indefinite in most cases, and that communications companies would be able to make information on government requests available.

However, Obama disappointed critics of U.S. domestic surveillance programs hoping for more substantial reform and avoided mention of some of the more radical suggestions from the surveillance review panel. The review panel had recommended that the NSA be led by a civilian and that the agency be explicitly forbidden from undermining encryption standards, for example.

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