Obama Wants ‘New Approach’ to Phone Surveillance

But Obama emphasized the risks in government storage. “I am therefore ordering a transition that will end the Section 215 bulk metadata program as it currently exists, and establish a mechanism that preserves the capabilities we need without the government holding this bulk metadata,” Obama said. That’s despite Obama stressing the usefulness of the intelligence tool and a history that has shown no abuse by the National Security Agency or others.

Obama pointed to challenges in moving the metadata storage. “Relying solely on the records of multiple providers, for example, 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 database would be carrying out what is essentially a government function but with more expense, more legal ambiguity, potentially less accountability -- all of which would have a doubtful impact on increasing public confidence that their privacy is being protected.”

Obama proposed a transition away from the current Section 215 program. The government will immediately query phone calls that are “two steps removed from a number associated with a terrorist organization instead of the current three,” said Obama, who will also direct Attorney General Eric Holder to ensure that only judicial findings or a “true emergency” would warrant querying the phone records database. Obama directed the intelligence community and attorney general “to develop options for a new approach that can match the capabilities and fill the gaps that the Section 215 program was designed to address without the government holding this metadata itself,” Obama said. “They will report back to me with options for alternative approaches before the program comes up for reauthorization on March 28. And during this period, I will consult with the relevant committees in Congress to seek their views, and then seek congressional authorization for the new program as needed.”

CTIA Opposes Mandates

CTIA, which has typically declined comment on surveillance in the past, pushed back against even the potential for data retention mandates. The “appropriate balance” between security and civil liberties “can be achieved without the imposition of data retention mandates that obligate carriers to keep customer information any longer than necessary for legitimate business purposes,” said Vice President-Government Affairs Jot Carpenter in a statement. Sen. Ed Markey, D-Mass., promised to introduce a bill calling for the FCC to develop “rules of the road for data retention.” He slammed the potential abuses that could come from surveillance practices. “The government should not require private companies to store consumer information beyond what is necessary for their business purposes,” Markey said.

Computer & Communications Industry Association President Ed Black called the proposals “insufficient” and said he’s “disappointed” Obama did not move to halt bulk collection. Software & Information Industry Association President Ken Wasch also said he was disappointed that Obama didn’t do more to increase transparency, but called the speech overall “thoughtful.” The speech was a missed opportunity, Mozilla global privacy and public policy leader Alex Fowler wrote in a blog post (http://mzl.la/KnOOJA).

Obama was “correct to argue that U.S. intelligence agencies should retain for now their ability to analyze meta-data as this type of tool may provide useful insights in the future,” countered Information Technology & Innovation Foundation Senior Analyst Daniel Castro. He criticized Obama for not better outlining U.S. government policy on stronger cybersecurity and for not renouncing the intelligence community’s alleged recommendation of security standards that it knew how to compromise through so-called backdoors. TechFreedom President Berin Szoka slammed the idea of “outsourcing the retention of call records to private companies” as a “fig leaf that conceals the real issue: the legal standard for access.” The current standard is too low, Szoka said.

Obama also pledged to declassify more Foreign Intelligence Surveillance Court opinions, allow companies to disclose more information about the surveillance requests they receive from the government, tighten FISA Section 702 to limit incidental collection of U.S. citizens’ communications and make public national security letter requests eventually if possible. Congress should establish a panel of outside experts to speak before the FISC on significant cases, Obama said. The FISC advocates would weigh in on cases involving “novel issues of law,” with serious privacy implications, a senior administration official told reporters on the condition of anonymity.

Eyes on Congress

A flood of reactions followed, many expressing tentative support while saying more can and should be done. Members of Congress made clear they will continue to pursue bills. Privacy advocates from Demand Progress, the Electronic Frontier Foundation and ThoughtWorks, meanwhile, issued a bevy of statements expressing disappointment in Obama’s speech and also pointing to Congress for action.

Sponsors of the USA Freedom Act in both chambers will keep pushing legislation, they said. The act is seen as one of the more aggressive overhauls and would end bulk collection if passed. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., stressed the “important tasks” Congress faces ahead and how “more needs to be done.” Rep. Jim Sensenbrenner, R-Wis., denied that any updates can come from Obama’s hand alone. “The most effective way for the president to restore trust in the intelligence community is to endorse the USA FREEDOM Act, which strikes the proper balance between privacy and security,” he said. “This bill would make permanent the good intentions of the president and address some of the omissions in his speech where Americans’ liberties need greater protection.” Sensenbrenner also said he’s “confident” that the act could “pass with broad bipartisan report."

The House Judiciary Committee “plans to move forward and hold a hearing in the coming weeks on the recommendations” of Obama and his review group, said Chairman Bob Goodlatte, R-Va. He’s glad Obama “finally acknowledged” the shortcomings of Section 215 bulk collection and said government storage is one among “many others” in terms of concerns.

The chairmen of the House and Senate Intelligence committees celebrated Obama’s emphasis on the necessity of bulk metadata collection and that its utility must be preserved. But they worried about the need for judicial approval before querying the FISC. “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,” said Sen. Dianne Feinstein, D-Calif., and Rep. Mike Rogers, R-Mich., in a statement. “We encourage the White House to send legislation with the president’s proposed changes to Congress so they can be fully debated.”

"It was only a first step and a lot of work needs to done,” said Sen. Richard Blumenthal, D-Conn., during a call with reporters. Congress will have to provide “precision and detail” following an address he called better on principle than prescription. The senator is glad Obama said he wants to work with Congress and is “open to ideas,” Blumenthal said. He liked Obama’s entreaties toward having a FISC advocate, which Blumenthal has fought for, but said the proposal is not enough. Such an advocate should be independent and full-time, he said. “I am not completely satisfied with ad hoc advocates assigned by the court for specific cases.”

Sen. John McCain, R-Ariz., plans to introduce a bill to create a Senate committee to address NSA issues, he said. McCain, who lost a presidential election to Obama, was unimpressed with the speech, which “left many crucial questions unanswered,” he said. Obama’s solution to metadata is the “same unconstitutional program with a new configuration,” said Sen. Rand Paul, R-Ky. He expressed disappointment and his intention to fight through his lawsuit against the NSA and by legislative means. Sen. Dean Heller, R-Nev., criticized the bulk collection and said he worries about shifting storage to private companies. Senate Judiciary ranking member Chuck Grassley, R-Iowa, said the speech was short on specifics.

Senate Intelligence Committee members and frequent surveillance critics Ron Wyden, D-Ore., Mark Udall, D-Colo., and Martin Heinrich, D-N.M., issued a joint statement calling the speech “a major milestone.” They said more work is needed to close a “back-door searches” loophole that allows the government to read Americans’ emails and other messages without a warrant, and to ensure “that intelligence activities do not recklessly undermine confidence in American IT products and American IT employers.” Another Senate Intelligence member, Dan Coats, R-Ind., said he would hold Obama to his pledge to work with Congress and backs “responsible” updates. Intelligence member Angus King, I-Maine, said he’s “fully convinced” that these intelligence programs are vital for security but mentioned a proposed compromise, which “would expand Legislative Branch oversight of the bulk data program by automatically recording every time the government accesses it and then reporting that information back to Congress on a quarterly basis."

Top Democrats reacted favorably. The promised changes amount to “bold and real steps” reflecting “an appropriate and sustainable balance,” Senate Majority Leader Harry Reid, D-Nev., said. House Democratic Whip Steny Hoyer, D-Md., credited Obama for a “thoughtful review” and emphasized the ongoing oversight role Congress must serve.

"Congress should reject proposals that would house call records in some third party entity -- such an entity will be rightly perceived as a subsidiary of the NSA and would do little to build public confidence,” said House Intelligence member Adam Schiff, D-Calif., who recently introduced a bill that would house the metadata with the phone companies.

The American Civil Liberties Union called Obama’s choice not to end bulk collection “highly troubling” and backs stronger measures, said ACLU Executive Director Anthony Romero. Greg Nojeim, director of the Center for Democracy & Technology’s Project on Freedom, Security and Technology, criticized the speech for a lack of specifics and said it’s only the beginning of a conversation. “Storage of bulk records by companies or a third party would be merely a shuffling of the chairs, not a real reform,” he said. “The only true solution to this issue is restoration of a system of particularized requests, as would be required by the USA FREEDOM Act.”

Obama announced other structural changes. He tasked his counselor, John Podesta, with a comprehensive review of big data and privacy. Obama has also ordered the State Department to select an officer to coordinate diplomacy on surveillance issues. The White House will appoint a senior official to help implement the goals Obama has laid out, he said. Expect surveillance recommendations from the Privacy and Civil Liberties Oversight Board on Thursday, the board said Friday. It plans an open meeting then at 1 p.m. in Room 309 at the George Washington University Marvin Center. “When you cut through the noise, what’s really at stake is how we remain true to who we are in a world that is remaking itself at dizzying speed,” Obama said. (jhendel@warren-news.com)