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Obama dialing back on the NSA

The Washington Post

January 17. 2014 8:30PM

President Obama ordered an end to the government’s bulk collection of Americans’ phone records on Friday as part of a broad restructuring of surveillance programs that swept up data on millions of U.S. citizens in secret until they were exposed last year by former intelligence contractor Edward Snowden.

Citing the “danger of government overreach,” Obama called for the National Security Agency to give up control of a massive database of phone records, the expansion of court oversight of surveillance programs, and a halt to eavesdropping on foreign leaders considered close U.S. allies.

The changes mark the first significant constraints imposed 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 Obama preserved 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 — may well be preserved, although with tighter controls. Obama recognized that others have raised alternatives, such as the records being held instead by phone companies or a new entity that would serve as an independent custodian — and that such plans face significant logistical and political hurdles.

In a speech at the Justice Department, Obama called for a “new approach” and declared that he would “end the ...bulk metadata program as it currently exists and establish a mechanism that preserves the capabilities we need without the government holding this bulk metadata.”

Even so, he warned “this will not be simple,” and gave subordinates including Attorney General Eric H. Holder Jr. until March 28 to develop a plan to “transition” the bulk data out of the possession of that government. Existing authorities for the metadata program are set to expire on that date, requiring a reauthorization by the Foreign Intelligence Surveillance Court.

“Today’s announced reforms to our government’s surveillance programs are both welcome and long overdue,” U.S. Rep. Ann McLane Kuster, D-N.H., said in a statement. “The NSA is clearly in need of significant reform, and the initiatives unveiled today by the President represent a significant step forward in better safeguarding our constitutionally-protected right to privacy while continuing to keep our country safe.”

“Senator Shaheen believes we need to reform the way the government collects and classifies data in the interest of transparency, but not in a way that puts our national security at risk,” said her spokesman, Nick Brown. He said Shaheen has introduced bipartisan legislation that “would implement necessary reforms, save taxpayers money, boost transparency, and make our classification policies more efficient.”

“The recent string of stories about the National Security Agency collecting massive amounts of information on law-abiding Americans has been shocking, and this bulk collection of data needs reform,” U.S. Rep. Carol Shea-Porter, D-N.H., said in a statement. “I look forward to hearing more from President Obama about exactly how he will implement the changes he outlined today.”

“We must ensure that our intelligence community has the tools it needs to prevent terrorist attacks and save American lives, while also protecting Americans’ constitutional rights,” U.S. Sen. Kelly Ayotte, R-N.H., said in a statement. “With that in mind, I will carefully review the president’s proposed changes to our nation’s intelligence programs.

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.

“In our rush to respond to very real and novel threats, the risks of government overreach — the possibility that we lose some of our core liberties in pursuit of security — became more pronounced,” Obama said. “This is particularly true when surveillance technology and our reliance on digital information is evolving much faster than our laws.”

Obama said the transition from the existing program would proceed in two steps. “Effective immediately, we will only pursue phone calls that are two steps removed from a number associated with a terrorist organization instead of three,” he said. “And I have directed the attorney general to work with the Foreign Intelligence Surveillance Court so that during this transition period, the database can be queried only after a judicial finding, or in a true emergency.”

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 e-mail 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 Holder and Director of National Intelligence James R. Clapper Jr. to develop new protections, including the duration of time the government can hold foreigners’ data and restrictions on its use — essentially extending to foreigners some of the protections currently given to Americans.

The President said he also wants to see whether there are greater protections that can be placed on the information collected from foreign targets about U.S. citizens, with respect to the way analysts gain access to and use that data.

Obama said the new directive he issued Friday “will clearly prescribe what we do, and do not do.” He said the United States would use signals intelligence only “for legitimate national security purposes, and not for the purpose of indiscriminately reviewing the e-mails or phone calls of ordinary people.” The United States, he added, 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.

Obama’s directive applies to NSA bulk collection and spells out that it should be used only for countering terrorism, the proliferation of weapons of mass destruction and cyberthreats, for combating transnational crime and to protect the U.S. military and allied forces.

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 e-mails 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.”

“Together, let us chart a way forward that secures the life of our nation, while preserving the liberties that make our nation worth fighting for,” Obama concluded.

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 stolen by former NSA contractor Edward Snowden. U.S. officials have said Snowden stole up to 1.7 million documents, many of which he has turned over to reporters. New revelations based on the document are expected to continue this year.

The NSA’s harvesting of phone data began after the Sept. 11, 2001, terrorist attacks and was placed under court supervision in 2006. The program collects metadata, or phone numbers dialed and call lengths and times, but not call content. Analysts are supposed to access the data only for the purpose of seeking leads in counterterrorism investigations.

Obama said in Friday’s speech that the phone-records collection program grew out of a need to fill a “gap” identified after the Sept. 11 attacks. One hijacker made a phone call from San Diego to a known al-Qaeda safe house in Yemen, but the NSA, which saw that call, could not tell that it was coming from someone already in the United States, Obama said.

He stressed that there has been “no indication that this database has been intentionally abused.” Yet, he added, “critics are right to point out that without proper safeguards, this type of program could be used to yield more information about our private lives and open the door to more intrusive, bulk collection programs.” Moreover, he said, the program “has never been subject to vigorous public debate.”

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