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.

US President Barack Obama speaks during a taping of TNT's Christmas in Washington at the National Building Museum in Washington on December 15, 2013.  
National Journal
Dustin Volz
Jan. 15, 2014, 5:30 a.m.

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.

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