White House aides said reforms proved far more difficult than they initially appeared, and Obama has struggled to find middle ground between those who warn that government surveillance is excessive and could lead to abuses and national security officials who contend that the programs are critical for counterterrorism and already have passed congressional and judicial review.
In a widely anticipated speech on Friday, Obama will seek to boost public confidence in the government’s ability to safeguard privacy even as he leaves most current surveillance programs intact with only modest modifications.
He thus is expected to say that although the NSA’s bulk collection of domestic telephone toll records can’t continue in its present form, he will not propose requiring telephone companies or another entity to maintain long-term storage of the so-called metadata — numbers called but not the conversations — to replace the NSA database, as a presidential task force has recommended.
The president instead will ask Congress to craft a solution, aides said.
He doesn’t want to be “hasty” about radically revising a program that top intelligence officials consider valuable, said one adviser. Moreover, legislation almost certainly would be required to revamp the current system, which Congress previously approved.
“He will say, ‘The program has to change. ... Over to you, Congress,’ ” said a senior intelligence official who has been briefed on the decisions and who insisted on anonymity because he was not authorized to discuss the president’s deliberations.
Lawmakers are divided on whether or how to change the NSA program, making any major adjustments unlikely in the short term. But the provision in the law that authorizes the program, Section 215 of the Patriot Act, is up for renewal in 2015, and that could provide a platform for review.
Obama’s posture is likely to deeply disappoint privacy activists and their allies in Congress who argue that the bulk collection program violates civil liberties and contains too much private data on Americans. But Obama has never felt that way, and supported the program both as a senator and as president.
It’s possible that Obama may yet adjust his views. Some of his top staffers said Wednesday they were not sure exactly how he wanted to proceed. He still hasn’t nailed down some details of his speech and, though they know he will limit metadata collection in some way, they can’t say how.
“Metadata may be the most challenging part,” said Sen. Richard J. Durbin, D-Ill., a member of the Senate Judiciary Committee. “Having all that information at your fingertips can be helpful. ... But trying to invent an alternative (to direct NSA control) is tricky.”
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Durbin said Obama didn’t “tip his hand” when they discussed the program this week.
Telephone companies don’t want to become a repository for the calling records because of potential legal liability and because they don’t have an obvious way to pay for the added work, according to aides working on the project. A third-party curator appointed and paid by the government might struggle to prove it was independent.
Intelligence officials lobbied the White House vigorously not to make it more difficult for them to access the telephone records when they need them. But if the government can examine the material too easily, it may not allay concerns about who controls it.
Obama has come under intense pressure to rein in government surveillance and increase oversight since an independent panel that he appointed called last month for 46 changes to current practices. Officials say he already has decided not to support several of the key recommendations.
The president, for example, will not propose requiring a court order each time the FBI issues a so-called national security letter, a form of administrative subpoena used to access otherwise private customer records from telephone, banking, credit card and other companies.
The FBI, which issues more than 20,000 such subpoenas a year, has strongly opposed requiring a judge to review each one. On Tuesday, a federal judge, John D. Bates, who was appointed to speak for the Foreign Intelligence Surveillance Court, wrote members of Congress to warn of staunch opposition in the judiciary as well.
Obama also will not push for new restrictions on the use of data from U.S. citizens that is collected inadvertently while the NSA is targeting foreign Internet traffic under Section 702 of surveillance law. The task force had sought new rules to protect Americans’ privacy, but intelligence agencies had opposed any changes.
The NSA vacuums up communications from servers owned by Google, Apple, Microsoft and other U.S. technology companies, operating under a program code-named PRISM. Documents leaked by Snowden showed the NSA could keep information inadvertently collected about Americans for up to five years and share it with other agencies.
“We feel like once this information is lawfully collected, there should not be additional restrictions on how it is used,” the senior intelligence official said.
The president will announce some changes that are likely to hearten NSA critics.
He will say that senior administration officials will play a larger role in reviewing foreign surveillance decisions, including eavesdropping on allied foreign leaders. Snowden’s disclosures that the NSA was monitoring the cellphones of leaders in Germany, Mexico and Brazil caused an uproar abroad.
Obama also will speak in favor of creating a way for an independent advocate to represent privacy interests in classified hearings before the Foreign Intelligence Surveillance Court, although he will not specify how that should work, the senior official said. In his letter to Congress about the views of the federal judiciary, Bates said that proposal was “unnecessary — and could prove counterproductive.”
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