In a closely watched speech about the NSA and its spy programs, President Obama said this week that "the work has begun" on hammering out detailed reforms, and he announced some initial measures, including steps to prevent abuse of the widely criticized bulk phone-records program and greater privacy protections for citizens of other nations. Critics, however, were less than all-in.
The speech was a response to comments and recommendations made by the president's handpicked NSA Review Group in a report (PDF) released in late December, as well as to opinions gleaned from recent White House meetings with intelligence officials, privacy advocates, and technology companies.
In a larger sense, of course, it was a reaction to the global debate over civil liberties and national security brought on by the leaking of top-secret NSA documents by former agency contractor Edward Snowden -- a debate that's revealed the alarming surveillance capabilities made possible by the digital age. Echoing remarks in the Review Group's report, Obama addressed the need for laws and values to keep pace with technology.
"What's at stake in this debate goes far beyond a few months of headlines, or passing tensions in our foreign policy. When you cut through the noise, what's really at stake is how we remain true to who we are in a world that is remaking itself at dizzying speed," Obama said.
And the president signaled that he's aware of the concern raised by surveillance critics such as Snowden, Web inventor Tim Berners-Lee, journalist and Snowden confidant Glenn Greenwald, and others that the Internet is at risk of being warped from a free and open, creative space into a Big Brother spy tool that would eliminate privacy once and for all.
"As the nation that developed the Internet, the world expects us to ensure that the digital revolution works as a tool for individual empowerment rather than government control," Obama said.
As for the practical realities behind such a guarantee, the president specifically tackled some of the Review Group's proposals and said others would be explored further before decisions were made. (And Greenwald expressed skepticism about the real reforms behind Obama's "pretty words.")
Dealing with metadata
One of the most talked about items on the agenda was the program whereby the NSA vacuums up, without a warrant, the metadata -- information on calls placed and received -- that's associated with every telephone call made within, to, and from the US every day.
In its report, the Review Group said, as have many people concerned about such surveillance, that metadata "can reveal an enormous amount about that individual's private life." It also said its review suggested that "the information contributed to terrorist investigations" by the NSA's bulk collection of telephony metadata "was not essential to preventing attacks and could readily have been obtained in a timely manner" using conventional legal means.
But one of the group's members -- former CIA Deputy Director Michael Morrell -- said in a later editorial that the program "would likely have prevented 9/11" had it been in place prior to the 2001 terror attacks (though the Review Group report also noted, as others have, that the intelligence community had info that could have helped stop the plot but failed to share it among the appropriate agencies). And Obama cited 9/11 when discussing the program in his speech and said the metadata effort was an important counterterrorism tool.
"The telephone metadata program...was designed to map the communications of terrorists, so we can see who they may be in contact with as quickly as possible," he said, adding later that "the Review Group turned up no indication that this database has been intentionally abused. And I believe it is important that the capability that this program is designed to meet is preserved."
He further said, however, that he recognized the danger of abuse of such a program:
I believe critics are right to point out that without proper safeguards, this type of program could be used to yield more information about our private lives, and open the door to more intrusive, bulk collection programs. They also rightly point out that although the telephone bulk collection program was subject to oversight by the Foreign Intelligence Surveillance Court and has been reauthorized repeatedly by Congress, it has never been subject to vigorous public debate.
Obama moved toward adopting the Review Group's recommendations on the metadata program. The group said the government should no longer collect and store phone-call metadata; instead the information should be held by the phone companies (as it is already, as business records) or by some other third party, and that the NSA should need a court order, on a case-by-case basis, to access it.
The president said a "transition" would take place and that details would need to be worked out because of potential difficulties.
"Relying solely on the records of multiple [phone-service] providers, for example, could require companies to alter their procedures in ways that raise new privacy concerns," Obama said. "On the other hand, any third party maintaining a single, consolidated database would be carrying out what is essentially a government function with more expense, more legal ambiguity, and a doubtful impact on public confidence that their privacy is being protected."
The president said he's ordered the attorney general and intelligence officials to come up with a workable option "that can match the capabilities and fill the gaps that the Section 215 [metadata] program was designed to address without the government holding this metadata." Their report is due March 28, the day the program comes up for reauthorization in Congress. Obama said he'd also speak with the appropriate congressional committees about a possible solution.
More immediately, addressing the warrantless aspect of the program, Obama said he's directed the attorney general and the Foreign Intelligence Surveillance Court (FISC) to develop a way to require the court's permission -- in a non-emergency situation -- before the NSA can access metadata in the database. (Discretion is currently left up to agency analysts.)
NSLs and the WWW
Another big issue mentioned in the Review Group's report involves so-called National Security Letters, or NSLs -- essentially administrative subpoenas used by law enforcement to demand customer data from companies. Tech firms such as Google, Yahoo, Facebook, and others have pushed for the right to provide info on how many such data requests they receive, in order to counter the perception that the NSA and others have wholesale access to their customers' information.
Obama stopped short of requiring law enforcement agencies to go to a judge before they issue an NSL request for data to a company, but he said he would require more transparency in their use. Among other things, he said, "We will also enable communications providers to make public more information than ever before about the orders they have received to provide data to the government."
In keeping with his remark about the Internet (which is, after all, the home of the World Wide Web), and in response to reports of NSA spying on leaders and citizens of allied countries, Obama devoted a fair amount of his speech to reassuring said allies about increased oversight of surveillance practices.
Obama said he issued a presidential directive to the intelligence community saying that "unless there is a compelling national security purpose -- [the US] will not monitor the communications of heads of state and government of our close friends and allies." He also said he'd taken the "unprecedented step of extending certain protections that we have for the American people to people overseas. I have directed the [Director of National Intelligence], in consultation with the attorney general, to develop these safeguards, which will limit the duration that we can hold personal information, while also restricting the use of this information."
He said as well that the newly issued directive makes it clear that NSA programs should not be used for "indiscriminately reviewing the e-mails or phone calls of ordinary people," to "suppress criticism or dissent," or to "provide a competitive advantage to US companies, or US commercial sectors."
Major issues in the Review Group's report that Obama didn't immediately address in detail but that are of particular concern to the tech community are the NSA's efforts to undermine encryption, weaken network security standards, and influence the building of backdoors into tech products. Critics say such efforts threaten to destroy the security of the Internet and damage overseas business for American tech firms, among other things.
Obama said ways to address these and related issues would be studied:
I have also asked my Counselor, John Podesta, to lead a comprehensive review of big data and privacy. This group will consist of government officials who -- along with the President's Council of Advisors on Science and Technology -- will reach out to privacy experts, technologists, and business leaders, and look at how the challenges inherent in big data are being confronted by both the public and private sectors; whether we can forge international norms on how to manage this data; and how we can continue to promote the free flow of information in ways that are consistent with both privacy and security.
He also said, however, that "we cannot prevent terrorist attacks or cyberthreats without some capability to penetrate digital communications -- whether it's to unravel a terrorist plot; to intercept malware that targets a stock exchange; to make sure air traffic control systems are not compromised; or to ensure that hackers do not empty your bank accounts."
The president announced as well the creation of a public advocacy panel, so privacy concerns -- and not just the government's position -- can be aired before the FISC.
Reactions to the president's speech were mixed.
Cindy Cohn, legal director for NSA critic and tech-freedom advocate the Electronic Frontier Foundation, said the following in a post on the nonprofit's site:
The president took several steps toward reforming NSA surveillance, but there's still a long way to go. Now it's up to the courts, Congress, and the public to ensure that real reform happens, including stopping all bulk surveillance -- not just telephone records collection. Other necessary reforms include requiring prior judicial review of National Security Letters and ensuring the security and encryption of our digital tools, but the president's speech made no mention of these. We're hopeful that the big data and privacy review [led] by John Podesta will address these issues.
In comments to Al Jazeera America, Glenn Greenwald, the journalist behind many of the stories based on info in the Snowden documents, similarly spoke of steps in the right direction. But he had serious reservations:
I think it is significant that the president has said that the NSA should no longer possess and control the metadata of every single American's communications. He didn't say who should control it, and there is a big question mark hovering over his proposal. But the fact that the NSA shouldn't in his view I think is significant. I think putting an advocate in the FISA court so that not only the government's lawyers are heard from when decisions are made about what kinds of surveillance should be permitted is an important step. There's other things like restricting the kind of spying they can do on world leaders, making it easier for people who get national security letters to talk about that in public. These are some mild reforms that are steps in the positive, in a positive direction.
But, again, the key is that all of the stories that we've been reporting that have made people so shocked and angry around the world will, at their core, continue unchanged, even if every single one of this proposals is implemented overnight.
And Greenwald questioned Obama's rhetoric, saying he thought the speech was:
designed to stifle real debate by pretending that the government has rode in and that President Obama has solved the problem, he's balanced the two sides, he came up with a reasonable middle ground, and now the crisis is over.
I don't think it's going to work, in part because the revelations have been so shocking to people that they want more than just pretty words from President Obama, from whom they've heard lots of pretty words for many years. But I also think there are a lot more revelations that are coming that are going to underscore that the problem is a lot more serious than even people currently think. And these kinds of symbolic gestures aren't going to work this time.
The American Civil Liberties Union had this to say in a statement:
The president's speech outlined several developments which we welcome. Increased transparency for the Foreign Intelligence Surveillance Court, improved checks and balances at the FISA court through the creation of a panel of advocates, and increased privacy protections for non-US citizens abroad -- the first such assertion by a US president -- are all necessary and welcome reforms.
However, the president's decision not to end bulk collection and retention of all Americans' data remains highly troubling. The president outlined a process to study the issue further and appears open to alternatives. But the president should end -- not mend -- the government's collection and retention of all law-abiding Americans' data. When the government collects and stores every American's phone call data, it is engaging in a textbook example of an "unreasonable search" that violates the Constitution.
It seems unlikely, however, that Obama will outright end the bulk metadata program; if his remarks in the speech are any indication, he appears to be convinced of the program's necessity in fighting terrorism, and committed to somehow satisfying the need for both liberty and security. And, referring to the debate that's gone on in the media and elsewhere, he also seems convinced that most Americans share his position. He said:
The basic values of most Americans when it comes to questions of surveillance and privacy converge far more than the crude characterizations that have emerged over the last several months. Those who are troubled by our existing programs are not interested in a repeat of 9/11, and those who defend these programs are not dismissive of civil liberties. The challenge is getting the details right, and that's not simple. Indeed, during the course of our review, I have often reminded myself that I 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; as a president who looks at intelligence every morning, I also can't help but be reminded that America must be vigilant in the face of threats.