Obama: NSA Reforms Should Give Americans ‘Greater Confidence’

But will they be enough to satisfy critics?

The new NSA Data Center on October 8, 2013 in Bluffdale, Utah.
National Journal
Dustin Volz, Matt Berman, Brendan Sasso, Matt Vasilogambros and Jack Fitzpatrick
Jan. 17, 2014, 6:21 a.m.

In a bid to calm grow­ing pri­vacy con­cerns about the gov­ern­ment’s spy­ing powers, Pres­id­ent Obama out­lined a series of steps Fri­day aimed at ush­er­ing in “con­crete and sub­stan­tial” re­forms to the Na­tion­al Se­cur­ity Agency.

“Amer­ic­ans re­cog­nized that we had to ad­apt to a world in which a bomb could be built in a base­ment and our elec­tric grid could be shut down by op­er­at­ors an ocean away,” the pres­id­ent said dur­ing a ma­jor policy speech at the Justice De­part­ment.

“And yet,” he ad­ded, “in our rush to re­spond to very real and nov­el threats, the risks of gov­ern­ment over­reach — the pos­sib­il­ity that we lose some of our core liber­ties in pur­suit of se­cur­ity — be­came more pro­nounced.”

“The re­forms I’m pro­pos­ing today,” Obama said to­ward the end of the speech, “should give the Amer­ic­an people great­er con­fid­ence that their rights are be­ing pro­tec­ted, even as our in­tel­li­gence and law-en­force­ment agen­cies main­tain the tools they need to keep us safe.”

Obama will ask At­tor­ney Gen­er­al Eric Hold­er and seni­or in­tel­li­gence of­fi­cials to forge a path for­ward that pre­serves the cap­ab­il­it­ies of the pro­gram without gov­ern­ment re­ten­tion of the data. The pres­id­ent is ask­ing for a re­port out­lining data-trans­fer op­tions be­fore March 28, when the col­lec­tion pro­gram comes up for reau­thor­iz­a­tion.

Ad­di­tion­ally, in­tel­li­gence ana­lysts will now be re­quired to ob­tain ap­prov­al from a secret court be­fore query­ing in­form­a­tion from the vast tele­phone data­base.

The metadata pro­gram, Obama said, “does not in­volve the con­tent of phone calls, or the names of people mak­ing calls. In­stead, it provides a re­cord of phone num­bers and the times and lengths of calls — metadata that can be quer­ied if and when we have a reas­on­able sus­pi­cion that a par­tic­u­lar num­ber is linked to a ter­ror­ist or­gan­iz­a­tion.”

Obama de­fen­ded the bulk col­lec­tion of metadata in part by rais­ing the spectre of 9/11. “One of the 9/11 hi­jack­ers — Khal­id al-Mi­hd­har — made a phone call from San Diego to a known al-Qaida safe house in Ye­men,” Obama said. “NSA saw that call, but could not see that it was com­ing from an in­di­vidu­al already in the United States.” The metadata pro­gram, the pres­id­ent said, was cre­ated to rem­edy that prob­lem.

The NSA will also re­duce from three to two the num­ber of “hops,” or de­grees of sep­ar­a­tion, from a sus­pec­ted tar­get it can jump when ana­lyz­ing com­mu­nic­a­tions data. In his speech, Obama said this change would be “ef­fect­ive im­me­di­ately.”

The White House also re­leased a policy dir­ect­ive Fri­day morn­ing, which re­cog­nizes that “sig­nals-in­tel­li­gence activ­it­ies and the pos­sib­il­ity that such activ­it­ies may be im­prop­erly dis­closed to the pub­lic pose mul­tiple risks,” in­clud­ing harm­ing in­ter­na­tion­al re­la­tion­ships. The dir­ect­ive also or­ders that “pri­vacy and civil liber­ties shall be in­teg­ral con­sid­er­a­tions in the plan­ning of U.S. sig­nals-in­tel­li­gence activ­it­ies.”

While the pres­id­ent re­cog­nized the sur­veil­lance pro­gram has grown in re­cent years, he also strongly de­fen­ded those who work in the in­tel­li­gence com­munity, say­ing they do not ab­use power. “After all,” he said, “the folks at NSA and oth­er in­tel­li­gence agen­cies are our neigh­bors and our friends.”

“Those who de­fend these pro­grams are not dis­missive of civil liber­ties,” Obama said.

Obama also called on Con­gress to cre­ate a pan­el of out­side ad­voc­ates to provide an “in­de­pend­ent voice” in sig­ni­fic­ant cases be­fore the For­eign In­tel­li­gence Sur­veil­lance Court. Cur­rently, the court only hears ar­gu­ments from the gov­ern­ment in fa­vor of sur­veil­lance.

It’s un­clear how closely this out­side pan­el would re­semble the re­com­mend­a­tion from the pres­id­ent’s own NSA re­view group for a spe­cial ad­voc­ate to ar­gue in fa­vor of stronger pri­vacy pro­tec­tions be­fore the se­cret­ive court.

Tech­no­logy com­pan­ies like Google, Face­book, and Mi­crosoft have been clam­or­ing to re­veal more in­form­a­tion about the re­quests they re­ceive from the NSA for user data. They ar­gue that the secrecy sur­round­ing the sur­veil­lance has heightened pri­vacy fears and dis­cour­aged people from us­ing their ser­vices.

Obama an­nounced sev­er­al steps aimed at im­prov­ing trans­par­ency. He dir­ec­ted the Justice De­part­ment to loosen the gag or­ders that ac­com­pany so-called na­tion­al se­cur­ity let­ters, which re­quire com­pan­ies to turn over cus­tom­er in­form­a­tion. The gag or­ders will no longer be in­def­in­ite, Obama said.

The gov­ern­ment will also al­low com­pan­ies like Google to dis­close more stat­ist­ics about the gov­ern­ment’s sur­veil­lance of their users.

Obama ordered the Justice De­part­ment to con­duct an an­nu­al re­view and de­clas­si­fy all For­eign In­tel­li­gence Sur­veil­lance Court opin­ions with “broad pri­vacy im­plic­a­tions.”

The pres­id­ent also made a point of try­ing to pla­cate for­eign lead­ers:

The bot­tom line is that people around the world — re­gard­less of their na­tion­al­ity — should know that the United States is not spy­ing on or­din­ary people who don’t threaten our na­tion­al se­cur­ity, and that we take their pri­vacy con­cerns in­to ac­count. This ap­plies to for­eign lead­ers as well. Giv­en the un­der­stand­able at­ten­tion that this is­sue has re­ceived, I have 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.

At the same time, the pres­id­ent said that U.S. in­tel­li­gence agen­cies “will con­tin­ue to gath­er in­form­a­tion about the in­ten­tions of gov­ern­ments — as op­posed to or­din­ary cit­izens — around the world…. We will not apo­lo­gize simply be­cause our ser­vices may be more ef­fect­ive.”

Obama’s speech is the first to enu­mer­ate spe­cif­ic re­forms to the NSA since Ed­ward Snowden began leak­ing de­tails about the agency’s sur­veil­lance powers last June. The in­tel­li­gence com­munity has con­sist­ently de­fen­ded its col­lec­tion of phone re­cords, which they con­tend is leg­ally jus­ti­fied un­der Sec­tion 215 of the post-9/11 Pat­ri­ot Act, as ne­ces­sary to com­bat po­ten­tial ter­ror threats.

“Giv­en the fact of an open in­vest­ig­a­tion,” Obama said, “I’m not go­ing to dwell on Mr. Snowden’s ac­tions or mo­tiv­a­tions.” But he did make clear his not-too-warm feel­ings:

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 in their own hands to pub­licly dis­close clas­si­fied in­form­a­tion, then we will nev­er be able to keep our people safe, or con­duct for­eign policy.

The pres­id­ent, for his part, em­phas­ized his “healthy skep­ti­cism” to­ward sur­veil­lance pro­grams, and noted that his ad­min­is­tra­tion has in­creased over­sight and audit­ing. He later men­tioned that he would “not be where I am today were it not for the cour­age of dis­sid­ents, like Dr. King, who were spied on by their own gov­ern­ment.”

That sen­ti­ment, of course, stands in stark con­trast to the massive spy­ing pro­gram he has over­seen. And times have changed:

“We can­not pre­vent ter­ror­ist at­tacks or cy­ber­threats,” Obama said, “without some cap­ab­il­ity to pen­et­rate di­git­al com­mu­nic­a­tions.”

The pres­id­ent also cri­ti­cized un­named coun­tries for knock­ing the NSA’s pro­grams in light of the leaks:

We know that the in­tel­li­gence ser­vices of oth­er coun­tries — in­clud­ing some who feign sur­prise over the Snowden dis­clos­ures — are con­stantly prob­ing our gov­ern­ment and private-sec­tor net­works, and ac­cel­er­at­ing pro­grams to listen to our con­ver­sa­tions, in­ter­cept our emails, or com­prom­ise our sys­tems. Mean­while, a num­ber of coun­tries, in­clud­ing some who have loudly cri­ti­cized the NSA, privately ac­know­ledge that Amer­ica has spe­cial re­spons­ib­il­it­ies as the world’s only su­per­power; that our in­tel­li­gence cap­ab­il­it­ies are crit­ic­al to meet­ing these re­spons­ib­il­it­ies; and that they them­selves have re­lied on the in­form­a­tion we ob­tain to pro­tect their own people.

Dir­ect­or of Na­tion­al In­tel­li­gence James Clap­per ap­plauded Obama’s Fri­day ap­proach in a state­ment as “meas­ured and thought­ful” and “fo­cused on strik­ing the right bal­ance.”

Pri­vacy ad­voc­ates have long been clam­or­ing for the gov­ern­ment to re­lin­quish con­trol of tele­phone metadata and in­crease ju­di­cial re­view of the NSA’s sur­veil­lance au­thor­ity, a view the pres­id­ent’s hand-picked re­view pan­el echoed last month. The pan­el also con­cluded that the pro­gram it­self has not been re­spons­ible for pre­vent­ing any ter­ror­ist at­tacks.

But many be­lieve the gov­ern­ment should end its cur­rent mass data-gath­er­ing tech­niques en­tirely, and con­sider phone com­pany or third-party re­ten­tion as merely a pivot that will in­cur a bevy of leg­al head­aches from the tech­no­logy in­dustry and oth­ers.

Phone com­pan­ies have giv­en no in­dic­a­tion that they are re­cept­ive to any man­date re­quir­ing them to main­tain and over­see the massive trove of tele­phone metadata, which in­cludes num­bers, call times, and call dur­a­tions but not the con­tents of con­ver­sa­tions.

“This shift­ing of re­cords would not solve the prob­lem — it would just shift it,” said Eliza­beth Goitein, co­dir­ect­or of the Liberty and Na­tion­al Se­cur­ity Pro­gram at the Bren­nan Cen­ter for Justice. “In the case of tele­phone com­pan­ies, it would turn them in­to agents of the sur­veil­lance com­munity.”

Obama’s speech sets up a show­down in Con­gress over how tightly to lim­it the NSA’s powers. Be­fore the speech, sev­er­al mem­bers of Con­gress cham­pi­on­ing NSA re­form le­gis­la­tion in­dic­ated they plan to move ahead with le­gis­la­tion re­gard­less of the re­forms an­nounced.

One of the mem­bers he’ll have to con­vince is Rep. Peter King, R-N.Y., a prom­in­ent mem­ber of the In­tel­li­gence Com­mit­tee. The White House in­vited him to at­tend the event at the Justice De­part­ment.

“Be­cause of the strength of our own demo­cracy,” Obama said at the end of his speech, “we should not shy away from high ex­pect­a­tions.” Now we’ll see just what ex­pect­a­tions Obama’s pro­pos­als have lived up to, or failed.

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