Obama expected to order change to NSA metadata collection

Last Updated Jan 17, 2014 8:55 AM EST

About seven months after former government contractor Edward Snowden blew the lid off of the National Security Agency’s sweeping surveillance programs, President Obama on Friday will endorse a series of modifications to the nation’s intelligence gathering practices.

On Friday morning, a senior administration official told CBS News' Major Garrett that Mr. Obama would order a transition that would end one of the most controversial programs -- the bulk collection of metadata -- "as it currently exists." Instead, the government would no longer hold the bulk metadata that has been provided by the phone companies.

Also, effective immediately, the program would be modified so a judicial finding is required before the government queries the metadata database, the official said.

 Mr. Obama has asked Attorney General Eric Holder and the intelligence community to report back to him before March 28, when the program is next up for reauthorization, on how the program's necessary capabilities can be preserved without the government holding the metadata, the official said.

The president will announce the reforms in a speech to be delivered from the Justice Department later Friday morning.

About a month ago, an advisory board, which Mr. Obama commissioned to review surveillance activities, issued a report that made 46 recommendations for reform. It suggested that the NSA halt its bulk collection of Americans’ phone records, instead leaving telecommunications firms or a third party to hold onto the metadata. The government would then access the data when needed through a court order. A memo delivered to Mr. Obama this week from his national security team advised him not to move the storage of  the metadata, sources told Garrett.

The president was expected to recommend other changes, such as placing a privacy advocate within the Foreign Intelligence Surveillance Act (FISA) Court process of approving specific phone and data tracking on suspected foreign terrorists or foreign nationals with suspected terrorist ties. Rep. Adam B. Schiff, D-Calif., a member of the House Intelligence Committee, said he also expects Mr. Obama to take steps to declassify more FISA court opinions and to allow telecommunications firms to make public the number of times they've been asked for information.

“The big question is will he go beyond those, with respect to the metadata program,” Schiff told CBS News before Friday's development. Schiff and other select lawmakers met with Mr. Obama at the White House last week to discuss potential reforms. The congressman has introduced legislation that would codify the advisory panel’s recommendation -- removing the government’s authority (granted under Section 215 of the Patriot Act) to collect those call records and instead requiring the government to obtain those records on a case-by-case basis from telephone companies.

Currently, the Federal Communications Commission (FCC) requires that telephone companies retain call records for 18 months.

 “The question is whether we could get them to hold onto the data for longer than that or put it in a different format... it’s possible they might be willing to do that through a private contractual agreement rather than through legislation,” Schiff said, acknowledging how challenging it could be to get substantive legislation through Congress.

One catalyst for action is the fact that the Patriot Act expires in June 2015. Because of a “sunset” provision, the program must be explicitly renewed by Congress before then, or it will expire.

“For those that don’t really want to see reform... if they’re unwilling to compromise, the program is going to be gone all together,” Schiff said. Given that Congress is likely to wait until the last minute to come to any decision, he added, “I would encourage the administration to do as much as it can administratively.”

The congressman said it’s more likely Congress could come together to pass smaller reforms, such as giving technology companies more freedom to disclose the requests for data they’ve received from the government.

In the meantime, the NSA’s bulk metadata collection program is being scrutinized in the courts. Just last month, two federal judges handed down conflicting rulings -- a judge in Washington said the authors of the Constitution "would be aghast" at the NSA's sweeping surveillance program, while a judge in New York called the program a legal, valuable tool.

“There’s no doubt in anybody's mind this issue is headed for the Supreme Court,” Faiza Patel, co-director of the Brennan Center for Justice’s Liberty and National Security Program, told CBS News.

Along with the Patriot Act authority to collect metadata, it remains to be seen what Mr. Obama will say about other controversial laws like Section 702 of the FISA Amendments Act. That provision is intended to let the government collect the content of communications from foreigners, but Americans’ communications are easily ensnared during the intelligence gather.

Other concerns remain, such as the FBI’s use of national security letters to obtain so-called business records (like credit card statements or phone records) without any court approval.

Privacy and civil rights groups have put pressure on the president to make significant changes to these programs, and they’re likely to keep up the pressure after his speech Friday. One civil liberties group, Demand Progress, is organizing what it calls "The Day We Fight Back" on Feb. 11, when it will encourage citizens to lobby Congress for greater privacy from surveillance.

“We eagerly await the president’s announcement,” the group’s executive director David Segal said in a statement. “However, we offer fair warning: Neither Demand Progress' members, nor millions of other Americans, will be placated by a whitewash that revamps the image of the global spying regime but does not offer serious reforms.”

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