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

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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