Grading Obama’s Proposed NSA Reforms
In a speech that tried hard to defend the actions of the U.S. intelligence community while simultaneously admitting that some of those actions were unnecessary and egregious, President Obama on 17 January 2014 announced modest reforms to NSA spying practices revealed by former NSA contractor Edward Snowden.
President Obama began by comparing the National Security Agency to the Sons of Liberty, an American revolutionary group famous for the 1773 Boston Tea Party, and one of whose members, Paul Revere, famously warned of incoming British troops. Ironically, Revere’s legendary midnight ride would have most likely been stopped by the British if they had possessed the NSA’s metadata collection capabilities. Even more ironically, the American Revolution was kicked off in part by overly broad general warrants that gave British troops nearly unlimited power to search for contraband. It’s all about intelligence.
While the president called on history to defend the NSA, he also employed it to point out why government surveillance must be carefully managed, saying, “I would not be where I am today were it not for the courage of dissidents like Dr. King, who were spied upon by their own government.” Martin Luther King, Jr. was illegally wiretapped by the FBI, with the blessing of Attorney General Robert F. Kennedy and FBI Director J. Edgar Hoover. The FBI recorded tapes of King reportedly cheating on his wife, and sent the evidence to King’s home, along with a threatening letter. It’s a dark reminder of the government’s treatment of the man who would go on to win the Nobel Peace Prize and be
awarded the Presidential Medal of Freedom and the Congressional Gold Medal posthumously, along with being honored with a U.S. federal holiday.
Despite President Obama applauding dissidents like King, he expressed colder feelings toward Edward Snowden, the man responsible for the leaks that led to the announced reforms. “I’m not going to dwell on Mr. Snowden’s actions or his motivations. I will say that our nation’s defense depends in part on the fidelity of those entrusted with our nation’s secrets. If any individual who objects to government policy can take it into their own hands to publicly disclose classified information, then we will not be able to keep our people safe, or conduct foreign policy,” Obama said.
In contrast to his opinions of Snowden’s actions, Obama said, “we needed a more robust public discussion about the balance between security and liberty.” Of course, it’s impossible to know what sort of discussion would have occurred without Snowden’s leaks.
All that being said, the president announced a number of broad reforms for the NSA, including:
- Increased executive branch oversight of intelligence activities to account for alliances, trade and investment relationships, the concerns of American companies, and civil liberties, including annual reviews of sensitive targets.
- Greater transparency, including annual reviews to declassify verdicts of the FISA court that could have broad impacts on privacy.
Additional restrictions on activities conducted under Section 702, which lets the federal government intercept the communication of foreign targets.
Fixed periods of secrecy for the FBI’s national security letters and increased transparency in allowing communications companies to disclose more about these orders.
An end to the bulk collection of metadata about telephone records as the program currently exists, and exploration of alternatives that would allow the government to access the same information without retaining it, either by having companies retain the information or passing it to a third party. Congress will be consulted, and the president expects a report on alternatives by 28 March 2014, the date the current metadata plan will be up for reauthorization.
Effective immediately, the government will pursue telephone calls only from numbers that are two steps removed from numbers associated with a terrorist organization, instead of three.
Increased privacy protections for foreign nationals, including foreign leaders. “Given the understandable attention that this issue has received, I’ve made clear to the intelligence community that unless there is a compelling national security purpose, we will not monitor the communications of heads of state and government of our close friends and allies,” Obama said.
Asking Congress to establish a panel of advocates outside government to provide an independent voice in cases before the FISA court.
While Obama outlined a laundry list of reforms, many of the details are unsurprisingly vague, and many of the reforms are in the hands of a contentious Congress.
How do Obama’s proposals compare to the recommendations of his own advisory panel? The Verge performed an in-depth analysis, and gave the president a C overall, with high marks for additional high-level oversight, and low marks for preventing the NSA from further weakening encryption standards.
The Electronic Frontier Foundation created a scorecard of its own, which unsurprisingly has tougher standards. The EFF gave Obama’s reforms 3.5 points of 12 (29 percent — a low F for those wanting to compare to The Verge’s grade), with high marks for reform of the FISA court, and low marks for failing to protect whistleblowers, not releasing evidence to defendants, undermining Internet security, and reduced data retention.
While the president has repeatedly reassured Americans that the government isn’t spying on their phone calls, he failed to mention the recently revealed Dishfire program that collects 200 million text messages per day. In an era when mobile phone companies practically give away voice minutes, how relevant are phone calls to privacy compared to email, text messages, and the myriad forms of Internet communication? And then there’s the revelation that the NSA can use radio waves to spy on
computers that aren’t even connected to the Internet.
To be fair, President Obama is in a situation where he can please no one. But at the same time, these programs pose significant threats to privacy and civil liberties, while being of questionable value. The New America Foundation, a non-partisan think tank, analyzed 225 terrorism charges and found that the vast majority of cases were brought about by old-fashioned detective work, not mass surveillance.
There’s no denying that our intelligence community is necessary for security in this modern world, but it’s becoming increasingly clear that it’s a community in need of oversight. There’s a clear problem when Congressional representatives have to ask a private security expert about intelligence activities because they can’t get answers out of the NSA. America’s intelligence operatives need to be capable of responding to threats, but at the same time, they must be accountable to our duly elected representatives for their actions.
This ruckus is happening on his watch so he can only own it. However, Obama's verbiage about the need to have public discussion shouldn't be taken too cynically. FISA is law. Congress created FISA and has variously modified it. Only Congress can change that law. Executive tweaks are between-the-lines flexibilities that can get reversed or locked into law according to Congress' actions. John Boehner is making noises about Obama overreaching. Josh Centers describes the POTUS' efforts as vague. Too much precision would pose a better bull's eye for Boehner. There's nothing linear about translating these "chess moves"; this chess game is in more than three dimensions.
Too many tech changes have been happening on too many fronts too fast. Laws are generically reactive when dealing with societal upheavals of a revolutionary nature. This current upheaval is happening during technological revolutions unparalleled in history. The stuff is hitting the fan…big time!
Ah, but Our Dear and Glorious Leader has said repeatedly that he won't wait for Congressional action; that he has a pen and will use it to sign Executive Orders.
This is all predicated on the belief that Obama actually has control over the NSA.