Telephone companies have said they do not want to be responsible for the database, and no one has come up with a workable idea for how a third party could hold the records.
“The idea that this complicated problem will be solved in the next two months is very unlikely, if not impossible,” said one official with knowledge of the discussions. “It is not at all inconceivable that the bulk collection program will stay the same, with the records held by the government until 2015,” when the law that authorizes the bulk collection is set to expire.
The official spoke on the condition of anonymity because of the sensitivity of the subject.
No meeting has been scheduled between government officials and the phone companies to discuss the issue, and no decision has been made about approaching the companies to further discuss the possibility of them holding the records.
Under the program, the NSA collects billions of records daily on Americans’ phone calls — the numbers dialed and the lengths and times of calls, but not the call content. The agency stores the “metadata” for five years in an effort to map links among terrorism suspects.
In his speech, Obama said the government should preserve the capability to use the records but moved to narrow its access to them by ordering aides to develop a plan to “transition” the data out of government control. He also acknowledged that the process would “not be simple.”
“Relying solely on the records of multiple providers, for example, could require companies to alter their procedures in ways that raise new privacy concerns,” Obama said. “On the other hand, any third party maintaining a single consolidated database would be carrying out what’s 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.”
Ten minutes after the speech, a Justice Department spokesman said, Attorney General Eric H. Holder Jr. called together more than half a dozen agency officials, including lawyers from the national security division, for a meeting to discuss how to accomplish the president’s goals.
“The attorney general strongly supports the president’s reforms and is committed to working with the intelligence community to implement them as quickly as possible,” said agency spokesman Brian Fallon.
Other officials, including many in the intelligence community, said they are skeptical that a new system could balance national security and privacy interests better than the one that exists.
“In my view, it will be very difficult to come up with a new plan that matches the current state of affairs in terms of security, privacy and operational effectiveness,” said Michael V. Hayden, a former director of the NSA and the CIA.
Some former intelligence officials said they thought Obama’s team would pull through. “Clapper and Attorney General Holder will meet the deadline because that’s what you do,” said John McLaughlin, a former deputy CIA director. He added: “I’m guessing they’ll present some options. What the president would be looking for is a playbook — not just a concept but, ‘Here’s how we would propose to do it . . . and here’s how you would turn it on.’ ”
Even if the Office of the Director of National Intelligence and the Justice Department agreed on a plan to have phone companies or an independent board store the data, they would have to sell their proposal to Congress, where there is resistance among some lawmakers, including the chairmen of the House and Senate intelligence committees, to making substantial changes to the program.
Several officials likened the president’s call for changes to the NSA program to his unfulfilled pledge to close the U.S. detention center at Guantanamo Bay, Cuba. In that case, he also assigned Holder to oversee the effort.
“It’s clear that the president chose the attorney general to do this because he’s the person the president believes will share his priority in getting the balance right between privacy and security,” said former Holder spokesman Matthew Miller. But, Miller said, Holder has “been tasked with not just finding consensus inside the administration, where it will be difficult, but also with Congress at a time when Congress hasn’t shown the ability to pass anything.”
In addition to seeking a plan to overhaul the phone-records program, Obama instructed the Justice Department to amend the use of national security letters — a form of administrative subpoena used to obtain business and other records — so the traditional gag order that accompanies them does not remain in place indefinitely.
“We can — and should — be more transparent in how government uses this authority,” Obama said in his speech.
A White House panel recommended last month that Congress amend the law so that the letters can be issued only after a judge has found that the government has reasonable grounds for believing that the information is relevant to a terrorism or intelligence investigation. Obama did not accept that recommendation.