President Obama on Friday announced a series of reforms to the nation’s surveillance apparatus, including steps to add more privacy safeguards to a controversial National Security Agency program that collects Americans’ phone records in bulk. The reforms, however, leave a number of open questions for Congress and other government officials to resolve.
“We have to make some important decisions about how to protect ourselves and sustain our leadership in the world, while upholding the civil liberties and privacy protections that our ideals – and our Constitution – require,” Mr. Obama said in a speech delivered from the Justice Department.
Most significantly, Mr. Obama is requiring the NSA to get judicial approval before querying its vast database of telephone metadata.
Effectively immediately, the president is also reducing the number of data connections surveillance analysts can use to tie communications of terrors suspects to phone numbers. These so-called “hops” previously could be used three times by analysts to develop a potential pattern or matrix of sources or terrorist affiliations, but Mr. Obama is reducing the number of “hops” from three to two.
In addition to those steps, Mr. Obama is asking Attorney General Eric Holder and the intelligence community devise a way to transfer the metadata database from the government to a third party -- whether it is telecommunications firms or some yet-to-be created entity.
While Holder and the intelligence community considers what third party could hold onto the metadata, Mr. Obama is also asking them to consider what they can do with other existing programs to map terrorist connections.
The steps Mr. Obama announced, a senior administration official told reporters Friday, are “without a doubt the most significant reform in our surveillance programs since President Obama took office.” While the president says he welcomes the debate over these programs, they were prompted by the information leaked by former government contractor Edward Snowden.Mr. Obama said Friday he would not “dwell on Mr. Snowden’s actions,” noting that he delivered a speech last year at the National Defense University -- before the Snowden revelations -- calling for a more robust public discussion about the balance between security and liberty.
Still, senior administration officials acknowledged Friday morning that the reforms announced today are targeting the metadata collection -- currently authorized under Section 215 of the Patriot Act -- because that program “has been of the greatest interest” since the Snowden leaks in June. The president, while announcing reforms to other facets of intelligence gathering, isn’t reforming any other programs specifically authorized under Section 215.
“What the administration trying to do is less about a broader balancing of our intelligence collection and posture and more about addressing the controversies,” CBS News Senior National Security Analyst Juan Zarate said. “These appear to be targeted fixes to specific controversies.”
Furthermore, it’s unclear whether these changes truly resolve privacy or civil liberties issues, or simply raise more questions.
“Why is AT&T having the data, rather than the government, any better?” Zarate asked. “I elect my government, I know what the oversight is -- if Google is going to run this, what control do I have over data?”
Mr. Obama himself acknowledged those apparent challenges.
Requiring telephone companies to hold data “could require companies to alter their procedures in ways that raise new privacy concerns,” he said. “On the other hand, any third party maintaining a single, consolidated data-base would be carrying out what is essentially a government function with more expense, more legal ambiguity, and a doubtful impact on public confidence that their privacy is being protected.”
He added, “More work needs to be done to determine exactly how this system might work.”
The president has asked Holder and the intelligence community to report back to him by March 28, the date by which this program needs to be reauthorized. In the meantime, he said he would consult with Congress to see their views and get congressional reauthorization as needed.
Rep. Adam Schiff, D-Calif., a member of the House Intelligence Committee, has introduced legislation that would codify the changes the president came close to endorsing -- his bill would require the government to obtain metadata records on a case-by-case basis from telephone companies. He told CBS News that passing any legislation on this issue could be a challenge. “I would encourage the administration to do as much as it can administratively,” he said.
On the other hand, Schiff pointed out that there’s some incentive for Congress to act at least before June 2015 -- at that point, because of a “sunset provision” in the Patriot Act, the program would totally expire unless Congress explicitly reauthorizes it.
“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.
Along with the reforms to the telephone metadata collection program, Mr. Obama also announced reforms to multiple other surveillance programs along with a series of reforms to the levers of power used to manage these programs:Surveillance authorized under Section 702 of the FISA Amendments Act: Section 702 is intended to let the government collect the content of communications from foreigners, but Americans’ communications are easily ensnared during the intelligence gathering. Mr. Obama said that he is asking Holder and Director of National Intelligence James Clapper to place greater restrictions on the government’s ability to retain, search, and use communications between Americans and foreign citizens that is “incidentally” swept up.