President Barack Obama will leave bulk telephone records with the National Security Agency for now and will ask Congress to decide whether the data should instead be held by telecommunications companies or transferred to a third party, a person familiar with the matter said.
While a White House advisory panel recommended last year that the phone metadata should be held by companies such as Verizon Communications Inc. (VZ), AT&T Inc. (T) or some other private entity, Obama isn’t ready to announce an immediate shift when he releases his proposal to limit NSA surveillance programs on Jan. 17, according to the person, who spoke on the condition of anonymity because the plans haven’t been announced.
The collection and storage of bulk communications data by the government has been one of the most contentious issues in the furor that followed disclosures about the NSA’s sweeping surveillance programs by former government contractor Edward Snowden. Whether such collection should continue has already sparked a fight in Congress over the program.
Telecommunications companies have resisted holding the records for the government, and Senator Dianne Feinstein has said it would be costly for carriers and potentially expose them to lawsuits.
A third party that could store the data doesn’t yet exist. An administration official familiar with the president’s thinking said Congress would have to enact legislation that would enable a third-party to retain the records.
AT&T Chief Executive Officer Randall Stephenson said he was “anxiously awaiting” Obama’s plan. Speaking at a Christian Science Monitor breakfast today in Washington, Stephenson declined to disclose his position on keeping the records.
“At the end of the day, the data needs to be provided only pursuant to a court order or a subpoena or a warrant,” Stephenson said. “So where the data is housed probably isn’t that important, as long as the rules are clarified and we know exactly what we’re looking at.”
The data collection issue crosses party lines.
Senator Patrick Leahy, a Vermont Democrat, and Representative James Sensenbrenner, a Wisconsin Republican, have introduced legislation that would prohibit the NSA from collecting bulk phone records, as has Senator Rand Paul, a Kentucky Republican backed by small-government Tea Party groups.
The NSA, or Federal Bureau of Investigation, would have to get a court order on a case-by-case basis to seek records from the phone companies under their bills.
Feinstein, a California Democrat and chairman of the Senate intelligence committee, and Representative Mike Rogers, a Michigan Republican who is chairman of the House intelligence panel, have said they will fight to keep the bulk-records program going.
The outcome is too close to call, Stewart Baker, a former general counsel for the National Security Agency, said in an interview. “I think it’s going to be very close,” he said.
Baker, now a Washington-based partner at Steptoe & Johnson LLP, said that Obama has been pulled back by his advisers from taking radical steps to curb spy programs.
“He came in with a set of views but he listened very hard to the interagency and all of the intelligence agencies and they moved him considerably on the value of the programs,” Baker said.
Two intelligence officials who’ve participated in the administration’s internal review of the NSA’s programs and asked for anonymity to discuss the plans said the president also opposes requiring the government in most cases to obtain a warrant to access the data. That was another of the recommendations from Obama’s independent panel.
Requiring such warrants won’t hinder terrorism probes, members of the the review panel said yesterday in testimony to the Senate Judiciary Committee.
White House officials also have suggested that Obama may be willing to curtail snooping on allies while preserving the ability to monitor leaders from hostile nations. The president has previously signaled he favors creating a privacy advocate at the secret court that oversees foreign surveillance.
Obama’s months-long review of NSA programs follows the disclosure last year of classified programs in documents leaked by Snowden, who faces espionage charges and is in Russia under temporary asylum.
The president is seeking to contain political and diplomatic damage to the U.S. and the economic impact on American businesses without giving up the government’s ability to use electronic intelligence gathering to fight terrorism.
The administration is fighting a global backlash over revelations the NSA spied on leaders including German Chancellor Angela Merkel, hacked into fiber-optic cables to get data from Google Inc. (GOOG) and Yahoo! Inc., and intercepted Americans’ communications without warrants.
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