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Background Conference Call by Senior Administration Officials on the Bulk Telephone Metadata Program

March 27, 2014

Via Teleconference

2:02 P.M. CET

MS. HAYDEN: Thank you so much. Hi, everyone. Thanks for joining. We wanted to get you together for a quick call on statements -- you either have these or about to receive -- on the President's decision on the Section 215 Bulk Metadata Program. As you'll see, the President has decided that the best path forward is for the government not to collect or hold this data in bulk, but instead the data would remain at telephone companies.

And to talk about that a little bit further, I've got four senior administration officials to talk to you. This call is on background with no embargo. Our speakers are senior administration officials.

Again, from here on, these are senior administration officials. And with that, I'll turn it over to our first senior administration official.

SENIOR ADMINISTRATION OFFICIAL: Thanks very much, Caitlin. And thanks, folks, for joining the call. Let me just make a few opening comments, and then we'll have an opportunity to take your questions.

As Caitlin laid out, we're here to describe the President's decision about the path forward on the 215 Telephony Bulk Metadata Program, and our desire to work with Congress to see legislation effected to achieve the principles that the President talked about in his January 17th speech.

As you know, in his speech at the Justice Department in January, the President ordered a two-step transition that would end the Section 215 Bulk Telephony Metadata Program as it had previously existed. And he ordered also that we establish a new mechanism to preserve the capabilities we need without the government holding this bulk metadata.

So as the first step in the transition of the Section 215 program, the President ordered two immediate and important changes to the existing program. First, absent an emergency situation, he ordered that the government can only query the Section 215 data after a judge agrees, based on national security concerns, and approves a particular number to be queried.

The second change he ordered was that the result of any query would be limited to data two hops from the selection term or number, instead of three hops. So those were two changes that the President ordered right out of his speech, and he talked about them in his speech.

And the government sought these changes after that speech in January, and the Foreign Intelligence Surveillance Court approved them pursuant to a request by the Department of Justice on February 5th.

So for the second step in the transition that the President ordered -- he instructed and he described this in his January 17th speech -- he instructed the intelligence community and the Attorney General to work to develop options for a new program that could basically meet two criteria. One, match the capabilities and fill the gaps that the Section 215 metadata program was designed to address. And the second, to do this without the government holding the data.

The President then put his team on a timeline. He instructed them to report back to him with alternatives for consideration before the program would come up for its regular reauthorization period before the Foreign Intelligence Surveillance Court on March 28th. So that brings us obviously to this week.

But there was a significant, rigorous and thoughtful process that went into getting us from January to today. And that involved a series of discussions and careful consideration of the program as it existed, of our capabilities, and of our needs -- all with the focus on how do we do meet the two criteria that the President laid out; how do we maintain the information that we need to keep us safe, as well as addressing the privacy concerns, the very real privacy concerns that the President identified in his speech in January.

So that involved a series of meetings and discussions and focus by lawyers and operators within the intelligence community and the Department of Justice through what many of you are familiar with as the National Security Council Deputies Committee process, and lawyers and operators meeting prior to the deputies' consideration and the consideration by the principals of the President's national security team.

That culminated in a meeting and discussion by the President with the key members of his national security team, the intelligence community leaders, and the Attorney General to discuss these options and make a decision. And that happened within the last few weeks.

So as a result of those discussions and consistent with the charge that the President had given them in his speech, the Justice Department and the intelligence community did develop those options, provided them to the President. And after consultation with the Congress, key leaders and members of the judiciary committee and the intelligence committees, as well as the private sector and privacy and civil liberties groups, and others, the President has, as Caitlin laid out, and as he averred to earlier this week, made a decision after considering various options that he believes that the government should not collect or hold the bulk telephony metadata records under Section 215, but rather be able to access this information in a way that meets our national security requirements without the government holding this data.

So under the President's proposal, a new program would be created with some key attributes, and I'll kind of lay out what we would like to see legislation contain, key attributes of a new program.

One, the government, as I said, would not collect these telephone records in bulk; rather, the records would remain at the telephone companies for the length of time that they currently do today.

Two, absent an emergency situation, the government would obtain the records only pursuant to individual orders from the FISA Court approving the use of a specific number for queries, if a judge agrees with the government based on national security concerns.

Third, the records provided to the government by the provider in response to queries would only be within two hops of the selection term, or the number being used. And the government's handling of any of the records it acquires from the provider would be governed by minimization procedures that are themselves approved by the FISA Court.

Fourth, the court-approved numbers could be used to query the data over a limited period of time without returning to the FISA Court for approval, and the production of records would be ongoing and prospective.

And then fifth and finally, the companies -- the telephone companies and providers would be compelled to provide technical assistance to ensure that the records can be queried and produced, and the results are transmitted to the government in a usable format and in a timely way.

So those are the key attributes that we would like to see that would be needed to implement the President's proposal, and the approach that we think meets the two criteria that the President laid out in his speech.

The administration, as I said, has been in consultation with congressional leadership amongst the intelligence committees and the judiciary committees on this issue. That's been throughout the year, both prior to the President's speech and afterwards. And we look forward to continuing to work with Congress to pass legislation that achieves the goals the President put forward in January and has talked about since.

And then finally, as I noted earlier, at the end of this week, the current authorization for the 215 program would expire. It's up for its 90-day reauthorization. So given that the kind of legislation that we're talking about won't be in place by March 28th, and given the importance of maintaining the capabilities at issue, the President has directed the Department of Justice to seek from the FISA Court a 90-day reauthorization of the existing program, along with the substantial modifications that have been in effect since his speech in January and since February, as I mentioned earlier when the court granted the government's request for those key changes that the President ordered in January.

So that's the description and the rationale behind the proposal that we would like to see as a path forward on the 215 telephone metadata program.

And at this point, I would be happy -- along with my colleagues -- to take your questions.

Q: -- to what degree you have spoken with the phone companies about this since the President's speech in January, just particularly because it seems like the technical assistance piece is a significant element, just in terms of actually making the thing work.

SENIOR ADMINISTRATION OFFICIAL: Thanks. The first part of your question was cut off a little bit, but I think I've got the gist of it.

Q: Just since January how much have you worked with the phone companies on this, since the January 17th speech.

SENIOR ADMINISTRATION OFFICIAL: Thanks. So since January 17th, we've had some fairly high-level discussions with some of the providers first and foremost to understand their concerns obviously with a lot of the disclosures that have occurred and the discussion and debate surrounding the 215 program. So we wanted to understand their concerns, and we've also wanted to understand what would be possible; and are the types of attributes that I just laid out and the things that we would need in order to maintain and achieve the two criteria that the President set forth for us, are those things that they think could be effectuated.

And I think we're going to need to work with them and obviously with Congress going forward to put together legislation that can get us this information, as I said, in a format and in a timely usable way.

Q: Hi. I'm wondering if you're going to continue to seek the 90-day reauthorization until legislation is passed.

SENIOR ADMINISTRATION OFFICIAL: Thanks. Look, as I said, first and foremost, the President has laid out and described the need for these capabilities, but also recognized that the potential privacy concerns for the government holding his data are ones that are significant.

So he's got a job as Commander-in-Chief to ensure that we continue to maintain this capability, and so we are going forward to reauthorize it. But we really hope that the Congress can act swiftly to both debate and discuss the use and the change in this program, and develop one in legislation that can support the kind of attributes that I just described.

Q: Hi, thank you. Thank you for this call. I have several questions. One is, why can't you just administratively end the bulk collection now as you continue to seek legislation to achieve the, for instance, limits on the hops, which you've already done administratively anyway? That's the first question.

And secondly, is there any -- would there be any time limit on the court approval for querying the numbers? Will you have to re-up those every 90 or 180 days or every year, or are those ongoing in perpetuity? Is that approval ongoing?

SENIOR ADMINISTRATION OFFICIAL: So I'll take your second I guess question first in terms of the timeline. There would be some limited time period, and I don't think we've settled on what that would be, and obviously that's something we're going to have to talk with Congress about.

But as I referenced in -- I can't remember if it was the third or fourth key attribute, but the ability to produce prospectively in an ongoing basis for a limited period of time responsive data to that query that is based on a judge-preapproved telephone number.

But with respect to the first part of your question, I think that also goes to what Eileen said. Look, we think that the change ought to be made to the program. The President believes the government should no longer collect and hold the bulk telephony metadata. He's also got a responsibility as Commander-in-Chief to ensure that we maintain the capabilities of this program, and he wants to see it done in a way that also responds to the concerns that have been identified and to create a program and have a discussion about it, and have legislation that would promote confidence in our intelligence-gathering activities.

Q: I'm wondering whether there's consideration being given to paying telephone companies or compensating them for requests that are made or responded to, or offering them protection against lawsuits that may arise. And secondly, I know it's a different program, but whether there's consideration being given to reforms for email and online activity surveillance -- which I know occurs under a different program, but there's been a lot of concerns expressed about.

SENIOR ADMINISTRATION OFFICIAL: With respect to the second part of your question, as the President laid out in his speech and as I've just described, what we're talking about here is a path forward on the bulk telephony metadata program that currently exists under Section 215. So that's what we're talking about in this instance.

With regard to your broader question, the President spoke at length and issued a presidential policy directive back in January describing a series of reforms and policy approaches to intelligence activities more broadly. And I'm sure folks here would be happy to provide you that information in a separate forum.

With regard to your question about compensation for the phone companies, I don't want to prejudge -- and I certainly welcome comments from my colleagues -- but I don't want to prejudge where we will get in our discussions with Congress on this, but I certainly would envision, consistent with what the government does today with respect to compensating phone companies and others for their production of records in response to lawful court process, I think we would see a similar approach.

Q: I have a couple of small things here. I want to make sure I understand -- is the Justice Department going to issue any kind of guidance publicly of what constitutes an emergency situation that would circumvent the FISC approval process? And then secondly, what is the limited period that you're contemplating that the NSA could keep querying the data once it obtains it?

SENIOR ADMINISTRATION OFFICIAL: I'll take your last question first again. I think I addressed that before, which is I'm not going to prejudge what the period of time would be, but I do think it would be limited, it would be circumscribed, and it would all, of course, be based off of a phone number or query that had already been approved by a judge. But I'm not going to presuppose what that time period would be right now.

With respect to the first part of your question in terms of what constitutes an emergency, I'll ask my colleague from the Justice Department to chime in, but certainly I would expect something like that to be in any legislation that we would discuss, but we do, of course, have experience in this context with the emergency exception that exists in the FISA statute already. But I don't know if my colleague from the Justice Department wants to chime in.

SENIOR ADMINISTRATION OFFICIAL: No, nothing to add on that on the querying question as we work it through, but it will be tied to the national security need that led to the approval of the number in question.

Q: I want to find out if this just affects collection of data in the United States involving U.S. persons. I'm not sure if that is the 215 program. Can you tell me what, if anything, you are doing in terms of collection of bulk data that involves non-U.S. or overseas persons or entities?

SENIOR ADMINISTRATION OFFICIAL: With the second part of your question, again, I think that goes back to the discussions and the policy and the speech the President made in January, and the Presidential Policy Directive 28, which was issued publicly in a fairly lengthy document, and we're happy to provide that to you.

With regard to the -- I think your question is about what does this data entail. These are records that would be held by the phone companies to include telephone calls into and out of the United States as well as within the United States. That is what the previously existing program addressed and what the proposal that we would advance and want to work with Congress on would also -- the same data would be at issue.

Q: I have a couple of questions related to the emergency situation exception. Can you sketch out what steps the government would take in an emergency situation? Would it have direct access to the data? Would it need to make any kind of formal request to the phone company? Would it go back to the FISA Court later? And then, how many times since January 17th has the government invoked an emergency situation?

SENIOR ADMINISTRATION OFFICIAL: On the second part, I'm not going to get into operational details that I obviously wouldn't be in a position to address anyways. But on your question about the emergency exception, here again I think this is something that -- this is one of the key attributes, as I mentioned, that we look forward to working with Congress to develop. But we've got some guide posts in this area, as I said, and we've got significant experience dealing with how do we handle emergency exceptions in all manner of intelligence and law enforcement regimes.

So in the FISA context -- and, again, I welcome comment from my Justice Department colleagues -- but there is existing in statute, in the current FISA statute, an emergency exception. It requires a signoff by a senior-level government official. There is a follow-up approach to the court within a set period of time within the current FISA statute -- it's seven days. And there is documentation that would have to be produced within that time to the court to receive approval of the query.

So this would be a request to the provider based on a finding by a senior-level -- a high-level government official that an emergency exists such that there is not time in advance to go to the court. But the government would have to go very quickly after the fact to the court to document the national security need for that query. Again, that is how it has worked in the FISA context. I think that could serve as a model. But, again, this is something we would want to work with Congress on.

I'd offer my colleagues to chime in if there's anything they think that I've missed in that regard.

Q: I was wondering if you can expand a little bit upon some of the concerns that the phone companies brought up during your conversations with them. Are they possibly facing more challenges on the formatting of the data, or is it the timely manner that you request it?

SENIOR ADMINISTRATION OFFICIAL: Thanks for the question. I think there is -- I think they'd want to understand what the government's needs would be. And I think the ability to format the data and produce it in a way that is useful and can be quickly used and analyzed by law enforcement and the intelligence community -- those are all things that they would be interested in.

But, again, those are things I think we would look forward to working with Congress on to make sure that we got legislation that was able to hit that mark and, again, trying to get at the two main criteria that the President laid out: able to maintain the capabilities and still provide our law enforcement and intelligence agencies the information they need while achieving this in a way that doesn't have the government collecting and holding the bulk metadata.

Q: There's obviously been legislation introduced this week from the House Intelligence Committee leaders, and they pretty much characterized that you guys are coming closer to them in reports about your proposal. I guess can you talk about how closely does what you're off doing match with what they have brought out? And, more broadly, does it concern you that -- would any proposal that did not include a specific court order before a search include individual number be a deal breaker?

SENIOR ADMINISTRATION OFFICIAL: Look, I think with respect to some of the other proposals that have been put forward and the House Intelligence Committee announcement earlier this week, I think we were very pleased to see that they agree with us that the government shouldn't collect or hold the data. So I think that is a point of agreement that the House had with the President. Of course, the President made that clear back in January that that was one of his main criteria.

I think the other main point, though -- and something the President has been clear about again since January, because he ordered a judicial preapproval of the queries -- that was one of the first step changes that he ordered immediately back in January. And since that time, that's been in effect. So that's an area where I think the President has laid out, again, back in January as one of his main criteria and reiterated here today as being one of the main attributes that he would like to see in a path forward on 215.

MS. HAYDEN: We'll take one more question, please.

Q: Hi, thanks for taking the call. I just wanted to clarify what the standard would be in order to do querying. Would it be the RAS standard that would have to be met? And also, what is your expectation for Congress to take up legislation? I mean, obviously, it's been very difficult to move anything in Congress and I'm wondering what you think the timeline that you're looking at would be.

SENIOR ADMINISTRATION OFFICIAL: I think we would hope that the Congress would take something up very expeditiously. Again, we agree and the President has said -- and he said it back in January -- he thinks there needs to be a debate about these tools, and that's what he would like to see happen. That's what he has contributed and has identified as a main point to come from all of these discussions. And that's why he is advancing his views of what the key attributes of a proposal would be.

I think we want to work very closely with Congress, as we have been, to see something effected expeditiously. We're hopeful that the Congress can come together to produce legislation that would provide the ability for our law enforcement and intelligence agencies to get this information in a timely manner, and to get the information they need to address national security and terrorism threats and do so without the government holding the data.

And with respect to the second part of your question, in terms of the standard, here again we've got experience in this. And since January, as I noted, the President has asked and directed that the government seek this data or query this data only pursuant to a judicial finding that there's a reasonable, articulable suspicion that the number is associated with a terrorist or a terrorist group. So that provides I think a good baseline and a good point from which we can work with Congress to develop the proposal that I laid out.

MS. HAYDEN: Thanks, everyone. This is Caitlin. Thanks for joining us. Again, a reminder that this call was on background with senior administration officials. If you have further questions, obviously you know how to find me and my fellow spokespeople in the intelligence community and DOJ. So feel free to follow up with us. But thanks for joining and have a great day. Bye.

END 2:32 P.M. CET

Barack Obama, Background Conference Call by Senior Administration Officials on the Bulk Telephone Metadata Program Online by Gerhard Peters and John T. Woolley, The American Presidency Project

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