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NSA overhaul: What to expect

President Barack Obama will announce significant changes to the way the NSA collects communications data, but he may not have the final say.
/ Source: MSNBC TV

President Barack Obama will announce significant changes to the way the NSA collects communications data, but he may not have the final say.

President Barack Obama will announce significant changes to the way the National Security Agency collects communications data, but those changes appear to stop short of the full set of changes demanded by privacy activists, administration officials said Friday. 

Obama will announce that a judge will now have to approve queries to the database holding information collected under Section 215 of the Patriot Act. Currently, the agency can acquire telephone communications records in bulk with a court order, but do not require judicial approval to search the database. The president will also say that the NSA should no longer hold the data, but will stop short of saying that it should not be collected at all. Obama will recommend that the attorney general and intelligence community work together with Congress to decide how the data should be held.

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“I think these are steps in the right direction, of course the devil will be in the details,” said Michelle Richardson of the American Civil Liberties Union. A key question is what legal standard will be required for querying data under the president’s proposal. Currently, the NSA is allowed to make three “hops” from the target of a query – that is, they are allowed to analyze the records not only of a target, but those of parties three degrees of separation from the target. The question, Richardson says, is “when you go get your court order, are you still grabbing millions of people’s records at a time?”

The president’s recommendations come after the NSA’s data gathering has faced weeks of harsh criticism, with the White House’s own surveillance panel saying the program should be overhauled and a federal court judge ruling that the program was likely unconstitutional. Intelligence officials have insisted that the program is essential to protecting the country, but many lawmakers, a federal judge, and even the president’s panel have not been convinced that the program is essential to the fight against terrorism.

Yet the president may not have the final say. Most of the changes privacy advocates are seeking can only be done through Congress, and the most popular bill supported by civil liberties activists, authored by Wisconsin Republican Rep. Jim Sensenbrenner and Vermont Democratic Senator Patrick Leahy, would go further than what the president is to propose. The Sensenbrenner-Leahy bill would essentially end bulk collection of data by raising the legal standard by which the government can request the data, rather than raising the standard under which the data can be queried after it is acquired. Congress could craft a bill along the lines of the president’s recommendations, or it could proceed with more far-reaching reforms.

Yet whatever happens, the president’s concessions to civil liberties activists signify a profound shift as result of the leaks facilitated by former NSA contractor Edward Snowden, whose leaks to the media first revealed the scope of the agency’s data collection. When that information first leaked, Obama said he “welcomed” the argument over surveillance policy. But without Snowden, that conversation would have never happened.