NSA Reforms: What Will Change, and What Won’t

National Journal
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Marina Koren and Dustin Volz
Jan. 17, 2014, 8:26 a.m.

De­pend­ing on whom you ask, Pres­id­ent Obama’s big-tick­et changes to the way the gov­ern­ment’s spy agen­cies use bulk tele­phone data, re­vealed dur­ing a Fri­day speech, pave the way to­ward ser­i­ous re­form or are merely at­tempts at win­dow dress­ing.

Obama, who stepped in­to his pres­id­ency with a “healthy skep­ti­cism” to­ward fed­er­al sur­veil­lance pro­grams, out­lined meas­ures he took to im­prove or change op­er­a­tions. But what he didn’t do “is stop these pro­grams whole­sale — not only be­cause I felt that they made us more se­cure; but also be­cause noth­ing in that ini­tial re­view, and noth­ing that I have learned since, in­dic­ated that our in­tel­li­gence com­munity has sought to vi­ol­ate the law or is cava­lier about the civil liber­ties of their fel­low cit­izens.”

So what did change, and what didn’t? First, here’s what’s new:

Phone metadata will no longer be housed at the NSA. In the com­ing months, the gov­ern­ment will no longer main­tain own­er­ship of hun­dreds of mil­lions of phone re­cords col­lec­ted from vir­tu­ally all Amer­ic­ans. This is likely the biggest block­buster enu­mer­ated by Obama, and it could draw some ire from mem­bers of the in­tel­li­gence com­munity.

But it will be held some­where else. The bulk col­lec­tion of Amer­ic­ans’ phone re­cords will con­tin­ue, but in­stead it will be done by either private phone com­pan­ies or some hy­po­thet­ic­al, as-yet-un­defined third-party en­tity. Al­though the path for­ward on this (will com­pan­ies be hit with a data-re­ten­tion man­date?) re­mains un­clear, Obama wants a solu­tion by the end of March.

More ju­di­cial ap­prov­al re­quired to search data. Be­gin­ning im­me­di­ately, the U.S. spy agen­cies will need to ob­tain an or­der from the secret For­eign In­tel­li­gence Sur­veil­lance Court for any query it con­ducts.

A new in­de­pend­ent “pan­el” to ad­voc­ate for pri­vacy in the FISA court. The out­side pan­el’s cre­ation re­lies on ac­tion from Con­gress, but this of­fers a chance to sa­ti­ate crit­ics furi­ous that the court ap­prov­ing sur­veil­lance or­ders only hears the gov­ern­ment’s side.

Few­er “hops” al­lowed when search­ing. Also ef­fect­ive im­me­di­ately, the gov­ern­ment will re­duce from three to two the num­ber of “hops,” or de­grees of sep­ar­a­tion, away from a sus­pec­ted tar­get it can jump when ana­lyz­ing com­mu­nic­a­tions data.

Re­stric­tions on spy­ing on our al­lies. Obama and seni­or ad­min­is­tra­tion of­fi­cials said heads of states con­sidered to be “close friends and al­lies” will be off-lim­its to sur­veil­lance. If that sounds vague, that’s be­cause it is. Who qual­i­fies as a close ally is not writ­ten in stone and can pre­sum­ably change to meet per­ceived na­tion­al se­cur­ity threats.

How in­tel­li­gence agen­cies like the FBI use Na­tion­al Se­cur­ity Let­ters will no longer be so se­cret­ive. “I have there­fore dir­ec­ted the at­tor­ney gen­er­al to amend how we use Na­tion­al Se­cur­ity Let­ters so this secrecy will not be in­def­in­ite, and will ter­min­ate with­in a fixed time un­less the gov­ern­ment demon­strates a real need for fur­ther secrecy,” Obama said. These doc­u­ments com­pel cer­tain parties to dis­close in­form­a­tion to the FBI.

Des­pite the changes, pri­vacy ad­voc­ates were quick to say more needs to be done to pro­tect Amer­ic­ans’ civil liber­ties. So, what’s not chan­ging?

The FBI still won’t need to get a court or­der to is­sue sub­poen­as for in­form­a­tion dur­ing in­vest­ig­a­tions. A Decem­ber re­port from a group of Obama-ap­poin­ted ad­visers tasked with ex­amin­ing NSA sur­veil­lance re­com­men­ded that Na­tion­al Se­cur­ity Let­ters, which the FBI uses to com­pel parties to dis­close in­form­a­tion, can be is­sued only after a judge finds that the gov­ern­ment has reas­on­able grounds to be­lieve that the in­form­a­tion it seeks is rel­ev­ant to an in­tel­li­gence in­vest­ig­a­tion. Of this, Obama said, “Here, I have con­cerns that we should not set a stand­ard for ter­ror­ism in­vest­ig­a­tions that is high­er than those in­volved in in­vest­ig­at­ing an or­din­ary crime.”

Neither will FISA. Al­though Obama prom­ised more over­sight, the court re­tains much of its power to com­pel third parties to dis­close private in­form­a­tion to the gov­ern­ment.

From a soft­ware per­spect­ive, how the NSA col­lects data won’t change. “The U.S. gov­ern­ment should ex­am­ine the feas­ib­il­ity of cre­at­ing soft­ware that would al­low the Na­tion­al Se­cur­ity Agency and oth­er in­tel­li­gence agen­cies more eas­ily to con­duct tar­geted in­form­a­tion ac­quis­i­tion rather than bulk-data col­lec­tion.” Obama made no men­tion of tweaks to the agency’s massive drag­net dur­ing his speech.

Lead­er­ship of NSA and Cy­ber Com­mand isn’t chan­ging. The ad­min­is­tra­tion already dis­missed this idea from the re­view pan­el, but Obama made no men­tion of al­low­ing the NSA’s lead­er­ship to change from mil­it­ary to ci­vil­ian con­trol. And the agency will not be sep­ar­ated from Cy­ber Com­mand, the mil­it­ary’s cent­ral cy­ber­war­fare hub, something the Decem­ber re­port pushed. The re­port also re­com­men­ded that the dir­ect­or’s po­s­i­tion should be open to ci­vil­ians and be sub­ject to Sen­ate ap­prov­al.

The NSA is still go­ing to by­pass se­cur­ity en­cryp­tions on the Web. The re­view board said that the gov­ern­ment should be “fully sup­port­ing and not un­der­min­ing ef­forts to cre­ate en­cryp­tion stand­ards” and “mak­ing clear that it will not in any way sub­vert, un­der­mine, weak­en, or make vul­ner­able gen­er­ally avail­able com­mer­cial en­cryp­tion.” The in­tel­li­gence agency, however, has no plans to stop crack­ing oth­ers’ en­cryp­tion codes — it has plans to get bet­ter at it.

The pres­id­ent may have set out to end the NSA’s bulk col­lec­tion pro­gram “as it cur­rently ex­ists,” but there’s no doubt that much still re­mains the same. Phone metadata will still be col­lec­ted and searched. Ul­ti­mately, much of the NSA’s activ­ity will con­tin­ue to be shrouded in secrecy.