Several weeks ago, President Obama announced a number of modest reforms for the NSA (see “Grading Obama’s Proposed NSA Reforms,” 17 January 2014), in response to Edward Snowden’s revelations about mass surveillance practices, but did they go far enough? Perhaps not, as the furor over NSA activities continues to grow.
On 22 January 2014, the Privacy and Civil Liberties Oversight Board (PCLOB), a part of the executive branch established by Congress in 2004, released a damning report on the NSA’s program to collect metadata on Americans’ phone calls, saying in no uncertain terms that it is illegal and must stop.
The report said, “We have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”
The NSA isn’t catching fire just from within the U.S. government, but also from the European Union as well. An EU parliamentary inquiry has declared that mass surveillance programs in both the U.S. and Britain appear to be illegal, and like the PCLOB, are calling for their immediate termination.
Nor are the latest Snowden documents helping the NSA’s argument that it collects data only to protect us. Recently released documents show that the NSA and GHCQ targeted “leaky” iPhone apps like Angry Birds to gather personal data such as age, gender, and location, and, in the case of some apps, even such details as sexual orientation. Other documents have revealed that the NSA spied on the 2009 Copenhagen climate summit in order to gain an advantage in negotiations — adding weight to claims that NSA spying serves an economic function.
While pressure mounts, the Obama administration is trying to open the release valve ever so slightly before the situation explodes. For example, the administration has cut a deal with large tech firms like Apple, Google, and Facebook to allow them to release more information about national security requests. The deal effectively settles a lawsuit the companies had filed against the government, and Apple updated its public letter on national security and law enforcement orders almost immediately with the new information.
While the agreement may be a step in the right direction for privacy advocates, it comes with several caveats. The companies are still not allowed to publish specific numbers, only vague ranges, and they still cannot deny any requests they find egregious. Worse, the agreement applies only to established communication services, not to those that have existed for less than two years. So while Apple may be able to disclose national security requests, Snapchat could not. Likewise, if Microsoft were to release a new chat platform tomorrow, it would be two years before it could disclose information.
Not only that, but the agreement applies only to “customer selectors.” It does not reflect anything regarding mass data collection, like PRISM. In some ways, the agreement is like a burglar throwing a steak to a guard dog. The dog is happy, but the burglar still gets to poke around your house.
Despite the administration placating the tech giants, the intelligence community is still in hot water with Congress. In a Senate hearing on 29 January 2014, Director of National Intelligence James Clapper was grilled by Senator Ron Wyden, who was promised answers within 30 days on whether American intelligence agencies have ever searched for information on American citizens. Likewise, CIA director John Brennan has a week to answer whether the Computer Fraud and Abuse Act applies to his agency, and FBI director James Comey must explain the burden of proof FBI agents must establish before tracking cellphone locations. However, in that same hearing, Clapper seemed to imply that any journalist who reports on Snowden’s revelations is an accomplice to a crime. Finally, for the first time, the NSA has a privacy officer to advise on civil liberty issues.
As for Edward Snowden, the whistleblower behind it all, he has been nominated for a Nobel Peace Prize. If he wins, will fellow Nobel winner Barack Obama congratulate him? Snowden gave an extensive interview to Germany’s Norddeutscher Rundfunk, with a number of interesting claims. However, it’s important to remember that individual revelations come not from Snowden himself, but from the documents that he provided to journalists, giving them and their publishers the responsibility to choose what to publish and verify the information before doing so.