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Obama Calls for Overhaul of N.S.A.’s Phone Data Collection Program Keeping Wide Net, Obama Sets Limits on Phone Spying
(about 7 hours later)
WASHINGTON — President Obama, declaring that advances in technology had made it harder “to both defend our nation and uphold our civil liberties,” announced carefully calculated changes to surveillance policies on Friday, saying he would restrict the ability of intelligence agencies to gain access to telephone data, and would ultimately move that data out of the hands of the government. WASHINGTON — President Obama, acknowledging that high-tech surveillance poses a threat to civil liberties, announced significant changes Friday to the way the government collects and uses telephone records, but left in place many other pillars of the nation’s intelligence programs.
But Mr. Obama left in place significant elements of the broad surveillance net assembled by the National Security Agency, and left the implementation of many of his changes up to Congress and the intelligence agencies themselves. Responding to the clamor over sensational disclosures about the National Security Agency’s spying practices, Mr. Obama said he would restrict the ability of intelligence agencies to gain access to phone records, and would ultimately move that data out of the hands of the government.
In a much-anticipated speech that ranged from lofty principles to highly technical details, Mr. Obama said he would require prior court approval for the viewing of telephone data. He also said he would forbid eavesdropping on the leaders of allied countries, after the disclosure of such activities ignited a diplomatic firestorm with Germany and other friendly nations. But in a speech at the Justice Department that seemed more calculated to reassure audiences at home and abroad than to force radical change, Mr. Obama defended the need for the broad surveillance net assembled by the N.S.A. And he turned to Congress and the intelligence agencies themselves to work out the details of any changes.
“America’s capabilities are unique,” Mr. Obama said. “And the power of new technologies means that there are fewer and fewer technical constraints on what we can do. That places a special obligation on us to ask tough questions about what we should do.”“America’s capabilities are unique,” Mr. Obama said. “And the power of new technologies means that there are fewer and fewer technical constraints on what we can do. That places a special obligation on us to ask tough questions about what we should do.”
But Mr. Obama also delivered a stout defense of the nation’s intelligence establishment, saying that there was no evidence it had abused its power, and that many of its methods were necessary to protect Americans from a host of threats in the years after the Sept. 11, 2001, terrorist attacks. Invoking lofty principles and then going into a highly technical discussion of the N.S.A.’s procedures, Mr. Obama said he would require prior court approval each time an agency analyst wants access to calling records, except in emergencies. He also said he had forbidden eavesdropping on the leaders of allied countries, after the disclosure of such activities ignited a diplomatic firestorm with Germany, Brazil and other countries.
The president did not accept one of the most significant recommendations of his own advisory panel on surveillance practices: requiring prior court approval for so-called national security letters, which the government uses to demand information on individuals from companies. And in leaving much of the implementation up to Congress, he most likely opened the door to extremely contentious battles. The full extent of that surveillance has not been publicly acknowledged, but a senior administration official said that the surveillance of dozens of foreign leaders has ended.
Mr. Obama made only passing reference to Edward J. Snowden, the former N.S.A. contractor whose disclosures of classified information set off a national and international clamor over American surveillance practices. Mr. Snowden’s actions, he said, jeopardized the nation’s defense and framed a debate that has “often shed more heat than light.” The president insisted there was no evidence the N.S.A. had abused its power, and said that many of its practices were necessary to protect Americans from a host of threats since the Sept. 11, 2001, terrorist attacks.
Still, noting his own record of opposition to intrusive surveillance and the “cautionary tale” of unchecked state spying in countries like the former East Germany, Mr. Obama acknowledged that the disclosures raised profound issues of the balance between liberty and security. Mr. Obama’s carefully calibrated proposals offered little comfort to civil-liberties advocates hoping for a thorough overhaul of the N.S.A.’s practices.
For example, Mr. Obama did not accept one of the most far-reaching recommendations of his own advisory panel on surveillance practices: requiring court approval for so-called national security letters, a kind of subpoena allowing the F.B.I. to obtain information about people from their banks, cellphone providers and other companies.
With the president setting in motion multiple internal administration reviews and asking Congress to take up some of the most difficult issues, the debate over surveillance practices is likely to continue unabated, eight months after it was touched off by the disclosure of classified information by a former N.S.A. contractor, Edward J. Snowden.
Mr. Obama made only a brief, critical reference to Mr. Snowden, saying his actions had jeopardized the nation’s defense and framed a debate that has “often shed more heat than light.”
Still, noting his own record of opposition to intrusive surveillance and the “cautionary tale” of unchecked state spying in countries like the former East Germany, Mr. Obama said the disclosures raised genuine issues of the balance between liberty and security.
“When you cut through the noise,” the president said, “what’s really at stake is how we remain true to who we are in a world that is remaking itself at dizzying speed.”“When you cut through the noise,” the president said, “what’s really at stake is how we remain true to who we are in a world that is remaking itself at dizzying speed.”
Though Mr. Obama has been weighing these changes for months, he made a final decision on judicial review for the collection of phone records only on Thursday night, a senior official said, attesting to the extreme delicateness of these issues and the competing interests at play. Though Mr. Obama has been weighing these changes for months, he made a final decision on the court order for accessing phone records only on Thursday night, an official said, attesting to the extreme delicacy of these issues and the competing interests at play.
At the heart of the changes will be an overhaul of a bulk data program that has swept up many millions of records of Americans’ telephone calls, though not their content. While Mr. Obama said such collection was important to foil terrorist plots, he acknowledged that it could be abused and had not been subject to an adequate public debate. Mr. Obama’s stated intent to get the government out of the business of warehousing American’s calling data in bulk may prove easier said than done. The phone companies have resisted taking on that role, which raises an array of difficulties, as Mr. Obama acknowledged in his speech.
“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,” he said. The president gave Attorney General Eric H. Holder Jr. 60 days to come back with recommendations; the government, for the time being, will continue to collect the data until Congress decides where ultimately it should be held.
In two immediate actions, Mr. Obama said intelligence agencies would pursue only phone calls that are two steps removed from a number associated with a terrorist organization, rather than three. He also instructed Attorney General Eric H. Holder Jr. to work with the Foreign Intelligence Surveillance Court so that intelligence agencies could gain access to the existing database only in an emergency or with a court order. Civil-liberties groups and lawmakers who have been critical of the N.S.A.’s practices appeared divided over whether Mr. Obama’s proposal on bulk phone records should be greeted with applause or wariness.
On the question of which entity will hold the storehouse of phone metadata, the president said Mr. Holder would make recommendations in 60 days. Privacy advocates have called for telecommunications providers to keep the data, though many of the companies are resisting it. Senators Ron Wyden of Oregon, Tom Udall of New Mexico, and Martin Heinrich of New Mexico — three Democrats on the Intelligence Committee who have been outspoken critics of government surveillance — jointly called Mr. Obama’s embrace of that goal “a major milestone,” although they said they would continue to push for other reforms Mr. Obama did not endorse.
Mr. Obama offered more modest protections to non-Americans, saying that the United States would extend privacy safeguards to foreigners for incidental information collected. He said he had directed Mr. Holder to develop procedures to restrict how long the government could hold that data, and what it could do with it. But Anthony D. Romero, the executive director of the American Civil Liberties Union, was more skeptical, noting that Mr. Obama had warned of hurdles with moving the data into private hands. “The bulk collection and retention of data in government warehouses, government facilities, seems to still be an open question,” he said.
“The bottom line,” he said, “is that people around the world — regardless of their nationality — should know that the United States is not spying on ordinary people who don’t threaten our national security, and that we take their privacy concerns into account.” For analysts working at the N.S.A., Mr. Obama’s changes will have two immediate effects. They will be able to scrutinize phone calls that are only two steps removed from a number associated with a suspected terrorist, rather than three.
Mr. Obama said he would forbid eavesdropping on the leaders of allied countries, though he did not offer a list of those, and he pointedly said that the United States would continue to collect information on the intentions of foreign governments. And, when the Foreign Intelligence Surveillance Court signs off on new procedures, the analysts will first have to persuade a judge that there is reason to scrutinize callers linked to a particular phone number, though Mr. Obama left a loophole allowing the N.S.A. to act on its own in a “true emergency,” with after-the-fact judicial review.
“We will not apologize simply because our services may be more effective,” Mr. Obama said. “But heads of state and government with whom we work closely, and on whose cooperation we depend, should feel confident that we are treating them as real partners.” While nothing in federal statutes explicitly gives the court the authority to grant orders to obtain the data, the Justice Department decided that it would most likely consent to doing so, in part because for a period several years ago, the court signed off on each query, officials said.
Mr. Obama made no mention of two of the recommendations of his panel of most pressing concern to Silicon Valley and the business community: that the N.S.A. “not in any way subvert, undermine, weaken or make vulnerable” commercial software, and that it move away from exploiting flaws in software to conduct cyberattacks or surveillance. Two strong defenders of the N.S.A., the leaders of the House and Senate Intelligence Committees, Representative Mike Rogers, Republican of Michigan, and Senator Dianne Feinstein, Democrat of California, focused on that change as a potential problem.
The president has been sharply criticized by companies that protest that the N.S.A.'s practices are costing them billions of dollars in foreign sales, as customers in Europe and Asia fear that American products are deliberately compromised by the agency. “If instituted, that approval process must be made faster in the future than it was in the past — when it took up to nine days to gain court approval for a single search,” they said in a joint statement.
Mr. Obama’s refusal to address the issue reflects a deep divide in the administration, with some intelligence officials complaining that without the ability to break encryption, to create “back doors” to enter computer systems abroad and to exploit flaws in software, the United States would be unilaterally disarming at a moment of heightened cyberconflict. Mr. Obama also said he was taking the “unprecedented step” of extending privacy safeguards to non-Americans, including requiring that data collected abroad be deleted after a certain period and limiting its use to specific security requirements, like counterterrorism and cybersecurity.
This issue has not generated the kind of public outrage that the surveillance has. But technology executives say it is at the top of their agenda, and they are already trying to develop “N.S.A. resistant” products. Meanwhile, from Germany to China, there is talk of boycotting some American hardware and cloud services that are viewed as compromised. “The bottom line,” he said, “is that people around the world — regardless of their nationality — should know that the United States is not spying on ordinary people who don’t threaten our national security.”
Senior intelligence officials indicated that placing a limit of two additional layers of contacts from that of an initial target — the so-called two-hop rule — would not be a major burden because the practice of investigating a longer chain of contacts creates such a huge amount of data that it is too unwieldy for law enforcement agencies. Mr. Romero said Mr. Obama’s promotion of privacy protections for noncitizens abroad was a “breakthrough moment.” Still, a senior intelligence official has said that most of the new requirements essentially codified what the N.S.A.’s practices have already been.
The president proposed to create a panel of advocates on privacy and technology issues that would appear before the Foreign Intelligence Surveillance Court. But the panel would be called on only in “novel” cases, rather than in every case. Left unanswered is who would decide which cases are novel. The president did not specify which foreign leaders would be on the no-spying list. But he said, “Heads of state and government with whom we work closely, and on whose cooperation we depend, should feel confident that we are treating them as real partners.”
Mr. Obama did not take up a recommendation to have the members of the surveillance court selected by appeals court judges rather than exclusively by the chief justice of the Supreme Court. Mr. Obama is not opposed to overhauling that process, administration officials said, but such a change would have to be authorized by Congress, and he did not want to appear to be targeting the chief justice, John G. Roberts Jr. Mr. Obama made no mention of two of the recommendations of his panel of most pressing concern to Silicon Valley: that the N.S.A. not undermine commercial software, and that it move away from exploiting flaws in software to conduct cyberattacks or surveillance.
To confront the broader privacy issues raised by the amassing and storage of personal data, Mr. Obama said he had appointed John D. Podesta, who recently joined the White House as a senior adviser, to lead an administration review.
Modifying a proposal from his advisory group, Mr. Obama proposed a panel of advocates on privacy and technology issues that would appear before the Foreign Intelligence Surveillance Court. But the panel, composed of part-time lawyers, would be called on only in “novel” cases, rather than in every case. Left unclear is who would decide which cases are novel.