2014 01 18 NYT A Crucial Caveat in Obama’s Vow on Phone Data – NYTimes.com

http://www.nytimes.com/2014/01/18/us/a-crucial-caveat-in-obamas-vow-on-phone-data.html?hp

A Crucial Caveat in Obama’s Vow on Phone Data

WASHINGTON — In overhauling the nation’s spy programs, President Obama vowed on Friday that he “will end” the bulk telephone data program that has caused so much consternation — “as it currently exists.”

The caveat is important. Although Mr. Obama imposed some new conditions on the program, the National Security Agency, for the time being at least, will continue to maintain and tap into its vast catalog of telephone data of tens of millions of Americans until someone can think of another way to do the same thing.

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The series of surveillance changes offered by Mr. Obama on Friday were intended to reassure a wary public without uprooting programs that he argued have helped protect the country. In his most extensive response to revelations by Edward J. Snowden, the former N.S.A. contractor, Mr. Obama ordered more transparency and instituted more safeguards, but he either passed over the most far-reaching recommendations of his own review panel or left them for Congress and the security agencies themselves to hash out.

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Obama Signals Change to N.S.A. Practices

The president, in response to months of debate set off by the disclosures of Edward J. Snowden, highlighted changes to the National Security Administration’s practices.

“The reforms I’m proposing today should give the American people greater confidence that their rights are being protected, even as our intelligence and law enforcement agencies maintain the tools they need to keep us safe,” Mr. Obama said in his speech in the cavernous Great Hall of the Justice Department. “And I recognize that there are additional issues that require further debate.”

Mr. Obama argued that the programs that have become so disputed had not been abused and yet needed reform to avoid the perception of abuse. And as he tried to satisfy critics by embracing their concerns, Mr. Obama also seemed determined to avoid alienating many of the major players involved in the country’s intelligence programs.

He deferred to James B. Comey, the F.B.I. director, by rejecting a proposal by his review panel to require court approval of administrative subpoenas known as national security letters. He avoided offending Chief Justice John G. Roberts Jr. by declining to accept a recommendation to take away his unilateral power to appoint every member of the Foreign Intelligence Surveillance Court, which oversees secret spying programs.

Mr. Obama agreed with telecommunications providers and did not back a proposal to have them keep the bulk data now housed at the N.S.A. He did not take on the N.S.A. military establishment by permitting a civilian to head the agency or by making the director’s position subject to Senate confirmation, two other recommendations of his advisers. And he acceded to Judge John D. Bates, the former surveillance court chief judge who had told Congress that any new privacy advocate appointed to argue before the court should not be an independent figure allowed to participate across the board.

Civil liberties advocates who had pressed Mr. Obama to do more reacted with a mix of optimism and disappointment. “While I appreciate the president’s effort to strike a better balance between the twin imperatives of protecting Americans from harm and ensuring their civil liberties, the steps he announced today fall short of reining in the N.S.A.,” said Representative Peter Welch, Democrat of Vermont.

Supporters of the intelligence programs, on the other hand, were skeptical, worrying that the immediate changes ordered by Mr. Obama may produce more procedural hurdles, and that the larger changes still possible down the road would hinder the search for terrorists.

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Michael Allen, a national security aide in the Bush administration who also worked for the House Intelligence Committee, said that if nothing else, the changes may inspire confusion and risk aversion. Referring to the bulk data collection, Mr. Allen said, “The president says it is important, could have helped us prevent 9/11, it has worked, there are no instances of abuse, but we should change it anyway.”

The bulk data program seemed to cause the most difficulty for the president as he pondered what to do about it. His review panel suggested taking the data out of the N.S.A.’s hands and leaving it with telecommunications companies or a newly created independent entity. The N.S.A. could then tap it only in certain instances while investigating terrorist links.

Mr. Obama deemed both of those ideas unworkable and so put off a decision by saying he supported the goal of removing the data from the N.S.A. but would ask Attorney General Eric H. Holder Jr. and James Clapper Jr., the director of national intelligence, to come up with a way of doing that. He also sought ideas from Congress, which would have to pass legislation to change the program.

In the meantime, he set out a new rule that “the database can be queried” only with permission from the surveillance court, but allowed an exception “in the case of a true emergency.” He did not define what would constitute such an emergency or who would determine whether a situation qualified. Nor did he clarify whether the court would have to approve each time a new telephone number was searched or each time a new target was searched. But some program supporters expressed concern that it could take too long.

He also limited the scope of searches, allowing analysts to study data two layers removed from the target, instead of three. Intelligence officials have accepted such a change because the amount of data expands so vastly three layers out that it becomes less useful.

The details matter, and may become clearer in coming days. But for a president who came to office promising to end what he considered the excesses of the new security state, Mr. Obama’s speech on Friday was as much about the larger question of faith. Rather than throw out the programs at issue, he hoped to convince the public that they are being run appropriately.

That reflected an evolution for the president’s attitude toward the dispute. When the first of Mr. Snowden’s revelations came out last year, Mr. Obama seemed surprised at the public reaction.

“If people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process and rule of law, then we’re going to have some problems here,” he said last June.

By Friday, he had come to agree that Americans had every reason to be skeptical. “Given the unique power of the state,” Mr. Obama said, “it is not enough for leaders to say ‘trust us, we won’t abuse the data we collect,’ for history has too many examples when that trust has been breached. Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power; it depends on the law to constrain those in power.”

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