Privacy Matters

01.17.14

Obama’s NSA Reforms Show He Alone Can’t Stop Big Brother

The president’s proposals are a decent first step toward real change, but the surveillance state’s underlying powers can only be changed by Congress.

In major policy speech on surveillance Friday, President Obama announced that he would end the National Security Agency’s controversial  bulk telephone records program “as it currently exists” and make other changes to intelligence activities.  Yet the details were left vague enough—with so much depending on future decisions by Congress or intelligence officials—that it remains unclear whether Americans can expect meaningful reform.

In line with the recommendations of his own Review Group on Intelligence and Communications Technologies, which concluded that the NSA program had not played an essential role in preventing any terror attacks, Obama announced that he would seek to end bulk collection of phone records by government by the time the secret Foreign Intelligence Surveillance Court (FISC) is slated to renew the authority in March, as well as require the NSA to seek specific orders from the court in order to query existing data.  Those court orders would permit NSA to scrutinize the activity of phone numbers two degrees of separation, or “hops,” from numbers believed to be linked to terror groups—a retreat from the “three hop” analysis currently allowed.

Left unclear, however, is whether bulk collection will end entirely—leaving records in the hands of the individual phone carriers who create them—or continue, with responsibility for maintaining NSA’s massive database simply shifted to a third party “custodian,” such as a government contractor.  If records are left with the carriers, the government may yet seek to extend the length of time those records are retained, either by means of voluntary agreements with phone companies or a new legislative mandate—a proposal privacy advocates have long opposed.

Other reforms involved the operation of the secret intelligence court responsible for authorizing much NSA and FBI surveillance. Obama will ask Congress to create a panel of “advocates” to provide legal and technical expertise—and potentially oppose overbroad government requests—in novel cases with wide privacy implications. The attorney general will also regularly review major opinions issued by the court for declassification and public release. (Obama also took credit for the unprecedented disclosure of some 40 FISC opinions in recent months, though he failed to note that many of those disclosures were involuntary, compelled by successful Freedom of Information Act lawsuits.)

National Security Letters—controversial tools that allow high-ranking FBI agents to demand sensitive financial and communications records without judicial approval—will no longer come with permanent gag orders, a feature that has already been held unconstitutional by one court on First Amendment grounds.  NSL recipients will now be bound to silence for only a limited time unless a court finds reason to extend the gag, and be granted explicit permission to publish more aggregate information about the secret orders it receives from intelligence agency.  This meets a key demand issued by a coalition of major technology companies who have feared the loss of global consumer trust in the wake of continuing news reports about the scale of NSA monitoring.  Yet Obama balked at endorsing a key recommendation made by his Review Group: Requiring NSLs to be approved by courts, rather than issued at the discretion of FBI agents themselves. Without court involvement, the use of NSLs has exploded since the tool was greatly expanded by the Patriot Act (tens of thousands are issued each year) and audits by the Justice Department’s Inspector General have previously found systemic misuse of the authority.

These are decent first steps toward reform, but they fall well short of the more serious overhaul urged by Obama’s own expert panel.

Finally, foreigners can take some consolation in a new directive requiring intelligence agencies to apply “minimization procedures” to the communications of ordinary people it vacuums up overseas.  In short that means that NSA must seek to “minimize” the storage or dissemination of private information about foreigners unless it relates to some legitimate intelligence purpose—a requirement they are already meant to observe when they intercept communications concerning Americans. And in response to massive diplomatic blowback stemming from disclosures that NSA wiretapped allied leaders, such as Angela Merkel, the president will order a halt to spying on an unspecified several dozen foreign heads of state deemed “close friends.”

These are decent first steps toward reform, but they fall well short of the more serious overhaul urged by Obama’s own expert panel. Where Obama proposes to reign in—maybe, depending on the details—the one public bulk collection program we know about, the Review Group correctly identified the larger issue: The broad authority to obtain any business records under Section 215 of the Patriot Act, which was secretly reinterpreted by the FISC to allow the government to vacuum up entire vast databases without any particularized showing of suspicion.  Without fundamental legislative reform, nothing will prevent the next invasive bulk collection program—whether under Section 215, using National Security Letters, or under the related “pen register” authority used in a now-defunct program that vacuumed up Internet metadata.

On some of the Review Group’s recommendations, the president was disturbingly silent.  The president has asked the Director of National Intelligence to develop added safeguards for surveillance under the FISA Amendments Act of 2008, which permits warrantless surveillance of international phone and Internet traffic, subject to FISC-approved “targeting procedures.” But he did not specifically endorse a prohibition of so-called “backdoor searches”—queries of NSA databases for information about specific Americans.  Critics such as Sen. Ron Wyden have long urged closing the legal loophole that allows the spy agency to troll through vast stores of international intercepts for e-mails they could not have “targeted” for interception directly without obtaining a search warrant.

Nor was there any mention of NSA’s widely-criticized efforts to degrade commercial encryption software and standards, myopically compromising Internet security in order to enhance their own ability to eavesdrop.  Though the practice was forcefully condemned by the Review Group, Obama gave no indication he would order the agency to abandon it.

There are, of course, limits to what Obama can do unilaterally.  Privacy safeguards imposed by one president can be removed by the next—and if history is any guide, when the rules do change, they will change in secret. Reform we can rely on to stick is going to require Congress to act.  But the president could have lent his explicit support to the more comprehensive legislative efforts already underway, such as the USA FREEDOM Act co-sponsored by Republican James Sensenbrenner and Democrat Patrick Leahy, which align more closely with the Review Group’s recommendations than the more timid steps the president committed to today.

What Americans got instead was a symbolic commitment to change—with essential details yet to be determined—that leaves the intelligence community’s underlying powers essentially untouched.  If these are first steps, the individual reforms Obama proposed are welcome enough, but nobody should be fooled into thinking they amount to serious restraints on NSA.  They are a Band-Aid applied to the gaping wound the war on terror has inflicted on American privacy—a wound it’s now up to Congress to suture.