Obama’s NSA Proposals Fall Far Short of Real Change

The White House’s tepid plan aims to calm the public, not curtail the government’s surveillance programs.

President Barack Obama speaks about the National Security Agency (NSA) and intelligence agencies surveillance techniques at the US Department of Justice in Washington, DC, January 17, 2014.
National Journal
James Oliphant
Jan. 17, 2014, 6:52 a.m.

The White House prom­ised Fri­day that it was end­ing the NSA’s most con­tro­ver­sial sur­veil­lance pro­gram “as it cur­rently ex­ists.” But make no mis­take, it’s still go­ing to ex­ist.

In fact, what Pres­id­ent Obama has an­nounced will have little op­er­a­tion­al ef­fect on the Na­tion­al Se­cur­ity Agency’s col­lec­tion of Amer­ic­ans’ data. And, sig­ni­fic­antly, the ad­min­is­tra­tion has at­temp­ted to dodge some of the biggest de­cisions, passing the ball to Con­gress, which will likely do noth­ing if re­cent trends hold.

Much of the at­ten­tion in the run-up to the speech in­volved the NSA’s re­ten­tion and search of so-called metadata — call­ing re­cords, in­clud­ing calls made by U.S. cit­izens, that help the gov­ern­ment identi­fy po­ten­tial ter­ror­ist re­la­tion­ships. And the pres­id­ent didn’t come close to what pri­vacy ad­voc­ates have wanted — a sharp cull­ing of the pro­gram or its out­right ter­min­a­tion.

In­stead, the goal of Fri­day’s an­nounce­ment — as it has al­ways been — was to re­as­sure a skit­tish pub­lic both here and abroad that the pro­gram is be­ing used re­spons­ibly. “This is a cap­ab­il­ity that needs to be pre­served,” a seni­or ad­min­is­tra­tion of­fi­cial said.

After Fri­day, keep in mind how the status quo has, or has not, been altered:

1) The phone metadata still ex­ists.

2) It will be kept, at least in the short-term, by the gov­ern­ment un­til Con­gress fig­ures out what to do with it. (And don’t think the tele­com lobby won’t play a role in that.)

3) It will be searched.

4) Searches will be ap­proved by a court with a re­cord of be­ing friendly to the gov­ern­ment, one without a new pri­vacy ad­voc­ate.

5) Na­tion­al se­cur­ity let­ters can still be is­sued by the FBI without a court or­der.

6) Much of this activ­ity will re­main secret.

The pres­id­ent made two ma­jor policy pre­scrip­tions. First, he called for the data to be housed some­where oth­er than with­in the gov­ern­ment. Second, he said be­fore the NSA can search the call­ing-re­cord data­base, it should ob­tain ju­di­cial ap­prov­al.

To the first, the pres­id­ent would not spe­cify where the data will be ul­ti­mately stored. He wants the Justice De­part­ment and the in­tel­li­gence com­munity to come up with a pro­pos­al with­in 60 days. The ad­min­is­tra­tion is re­luct­ant to force tele­com pro­viders to house the data, both be­cause of lo­gist­ic­al prob­lems and be­cause the in­dustry wants noth­ing to do with it. Some have sug­ges­ted cre­at­ing a private con­sor­ti­um, but that will take time. And if it proves that there is no bet­ter place to keep the data, it well could re­main with the U.S. gov­ern­ment. (Sounds a little like GITMO.)

To the second of Obama’s meas­ures, ju­di­cial over­sight will come in the form of the For­eign In­tel­li­gence Sur­veil­lance Court, which crit­ics say acts as a rub­ber stamp for gov­ern­ment sur­veil­lance re­quests, rather than by more in­de­pend­ent-minded fed­er­al judges on oth­er courts. The Wall Street Journ­al last year es­tim­ated the Court re­jects less than 1 per­cent of all re­quests; the chief judge has main­tained that it sends back up to 25 per­cent. Either way, the over­whelm­ing ma­jor­ity of re­quests are gran­ted un­im­peded, par­tic­u­larly when the re­quests are time-sens­it­ive.

Tellingly, the pres­id­ent re­jec­ted a re­com­mend­a­tion from an out­side pan­el to es­tab­lish a “pub­lic ad­voc­ate” in­side the Court to rep­res­ent pri­vacy in­terests. In­stead, he wants an out­side group of ex­perts to con­sult on cut­ting-edge leg­al mat­ters, not on day-to-day sur­veil­lance re­quests.

Yes, the FISA re­view adds an ex­tra step to the pro­cess (one that may frus­trate coun­terter­ror hawks), but it likely will do little to re­strain the NSA. (The pres­id­ent is tak­ing one con­crete step, lim­it­ing searches to two “hops” away from a sub­ject’s phone num­ber, not three.)

The pres­id­ent also re­jec­ted a re­com­mend­a­tion that the so-called na­tion­al se­cur­ity let­ters used by the FBI to ob­tain busi­ness re­cords from in­vest­ig­a­tion tar­gets be sub­ject to ju­di­cial ap­prov­al, after the bur­eau ob­jec­ted to the idea.

Most im­port­ant, many of the re­com­mend­a­tions the pres­id­ent made Fri­day are per­ish­able. Ul­ti­mately Con­gress will have to de­term­ine the data-col­lec­tion and stor­age is­sues and oth­er ma­jor ele­ments of the pro­gram, in­clud­ing the pro­ced­ures of the FISA court, when it reau­thor­izes the NSA pro­gram this spring at the end of the 60-day win­dow out­lined by the pres­id­ent.

And it’s pos­sible Con­gress could choose to keep it in its cur­rent form, of­fi­cials con­cede.

Seni­or ad­min­is­tra­tion of­fi­cials main­tain that none of these sur­veil­lance pro­grams have been ab­used — and that they re­main a valu­able tool in com­bat­ing na­tion­al se­cur­ity threats (des­pite little evid­ence the metadata pro­gram has played a dir­ect role in foil­ing an at­tack). It’s why Pres­id­ent Obama was quick to men­tion the 9/11 at­tacks in his re­marks Fri­day. And it’s why, in his mind, re­form could really only go so far.

As it turned it, it wasn’t very far at all.

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