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Obama’s No-Win Dilemma for Spy Reform Obama’s No-Win Dilemma for Spy Reform

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Obama’s No-Win Dilemma for Spy Reform

Reports detailing the president’s avenue for NSA reform ahead of his major speech Friday depict a president attempting to balance the concerns of numerous stakeholders. None may walk away fully satisfied.

Obama will outline his NSA reform proposals at 11 a.m. Friday at the Justice Department.(SAUL LOEB/AFP/Getty Images)

photo of Dustin Volz
January 15, 2014

President Obama will reportedly outline several new restraints on the government's ability to collect and store vast amounts of data on U.S. citizens and foreigners in a major speech Friday, but his approach is unlikely to quell an ongoing push for broader surveillance reform.

Obama is expected to reduce the National Security Agency's access to bulk telephone data, request additional privacy protections for foreigners, and propose the installation of a public advocate on the secret Foreign Intelligence Surveillance Court, which currently hears arguments only from the government in favor of surveillance. The NSA's access to "relevant" phone records will be pared down from three steps removed from a terrorist suspect to just two steps, and the number of years such data can be stored will likely be reduced from the current five-year standard.

In a letter to Congress released Tuesday, a federal judge derided the idea of a privacy advocate as "unnecessary" and possibly "counterproductive." Also on Tuesday, the president's hand-picked surveillance review task force testified before the Senate Judiciary Committee in favor of such an advocate, a position it previously outlined in a report to Obama that identifies 46 possible reforms.

 

The anticipated reforms, reported by The New York Times and the Associated Press, largely align with many areas where observers have long expected the president would be be willing to budge. But notably absent is a proposal to leave bulk data in the hands of private phone companies or some other third party or to require court approval for access to some business records. Phone companies are not eager to take on that responsibility and such a hypothetical independent group does not currently exist.

The path Obama is forging suggests he will turn to lawmakers for help in deciding how broadly to interpret Section 215 of the post-9/11 USA Patriot Act, which the government has used as justification for much of its data-gathering, and where such information should be stored.

If the reports are true, Obama's restraints are likely to do little to silence NSA critics, who have been calling for substantive reform since Edward Snowden began leaking details about the agency's surveillance powers last June. Pressure on the White House to implement reform has long been mounting, but it reached a crescendo last month after Obama's surveillance review board issued its recommendations and a federal judge called the NSA's metadata collection "almost Orwellian" and a likely breach of the Fourth Amendment.

NSA officials and lawmakers supporting the agency's programs have repeatedly justified them as necessary to combat ever-evolving global terror threats. NSA chief Keith Alexander told Congress last month that while the programs have potential to be "extremely intrustive" they are properly checked against abuses internally.

"The way we've put the oversight and compliance and the regimen we have around it … ensure that we're doing this right," Alexander testified before the Senate Judiciary Committee. "Nobody has come up with a better way for us to connect the dots."

As recently as Tuesday, White House aides said the president was still ironing out the details of exactly how far-reaching he wanted the reforms to be. Lawmakers pushing legislation to codify restrictions on the NSA have said they will continue to do so no matter what reforms Obama announces.

"All three branches of government have said the NSA has gone too far," said Rep. Jim Sensenbrenner, R-Wis., last week after he and 15 other hand-picked lawmakers sat down with Obama to discuss NSA reform. "This problem cannot be solved by presidential fiat."

House Judiciary Committee Chairman Bob Goodlatte, R-Va., who also attended the White House meeting, added that "it's increasingly clear that we need to take legislative action to reform" the NSA's intelligence gathering.

"We have pretty strong indications that they will be cosmetic changes couched in reform," said Mark Jaycox, a policy analyst with the Electronic Frontier Foundation, which is calling for a strong overhaul of NSA surveillance practices. "The president and the administration will want [the NSA debate] to end with the Friday speech," but that's not going to happen, he said.

Also on Wednesday, The Times reported that the NSA is using radio waves to infiltrate computers worldwide (although, notably, not in the U.S.) to use technology that allows the agency to control data even when a breached computer is not connected to the Internet.

Obama is scheduled to speak about his NSA reform proposals at 11 a.m. Friday at the Justice Department.

NSA Advises Using 9/11 as Talking Point, Congress Delivers

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