Confirmed: NSA reform is more like business as usual
posted at 12:41 pm on January 17, 2014 by Ed Morrissey
The long-awaited presidential address on proposed NSA reforms didn’t quite meet the raised expectations after several months of debate over the reach of government into domestic communications. To paraphrase Shakespeare, it was full of muted sound and absent fury, and meant mostly nothing. As predicted by Michael Hayden and me earlier, the speech offered few real points of change — and Obama insisted that the phone metadata collection would continue:
Brian Fung at the Washington Post points out what the reform doesn’t cover:
What don’t these reforms cover?
These reforms are narrowly targeted at the NSA’s phone metadata program under Section 215 of the Patriot Act. They don’t cover other programs the government carries out under Section 215, such as the reported scraping of financial information by the CIA. They don’t address the NSA’s counter-encryption activities or any geolocation information that the NSA may have or may be collecting. They also don’t address other programs like those conducted under Section 702 of the FISA Amendments Act, which is the authority under which PRISM operates. Some of the reforms, both on the telephony metadata surveillance and others that the President is announcing today, require an act of Congress, and given the Senate’s general support for the NSA throughout the controversy, it’s unclear how much traction these proposals will get. Much of the spying that happens internationally will also remain untouched.
Additional reforms aside from those affecting Section 215 include: Deciding not to spy on “dozens” of foreign heads of state or heads of government. Some protections applied to U.S. citizens abroad will also now be applied to foreign nationals. And companies will be able to make more disclosures about government data requests, including on National Security Letters, which will no longer be secret “indefinitely.”
The decision not to spy on foreign leaders will no doubt play well overseas, but even that came with a large caveat, emphasis mine:
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. And I’ve instructed my national security team, as well as the intelligence community, to work with foreign counterparts to deepen our coordination and cooperation in ways that rebuild trust going forward.
It goes without saying that the category of “compelling national security purpose” is entirely subjective, and necessarily so. It’s still less than a categorical refusal to allow that kind of surveillance in the future. It’s a diplomatic bone, tossed with the understanding that our allies should applaud but not expect us to change too much about what we do.
Furthermore, one supposed change sounds either like no change at all, or raises serious questions about what was taking place before this speech, again emphasis mine:
First, I have approved a new presidential directive for our signals intelligence activities, at home and abroad. This guidance will strengthen executive branch oversight of our intelligence activities. It will ensure that we take into account our security requirements, but also our alliances; our trade and investment relationships, including the concerns of America’s companies; and our commitment to privacy and basic liberties. And we will review decisions about intelligence priorities and sensitive targets on an annual basis, so that our actions are regularly scrutinized by my senior national security team.
Did Obama mean to suggest that the national security team wasn’t performing these kinds of reviews at all before now? That’s what it sounds like, and even a pledge to perform this oversight on an annual basis seems pretty lax. Do new threats arise only on an annual basis? Shouldn’t this be a higher priority for Obama’s national-security team than just an annual report?
At least one vocal critic from Capitol Hill was left unimpressed. Senator Rand Paul (R-KY) issued this official statement shortly afterward:
“While I am encouraged the President is addressing the NSA spying program because of pressure from Congress and the American people, I am disappointed in the details. The Fourth Amendment requires an individualized warrant based on probable cause before the government can search phone records and e-mails. President Obama’s announced solution to the NSA spying controversy is the same unconstitutional program with a new configuration,” Sen. Paul said. “I intend to continue the fight to restore Americans rights through my Fourth Amendment Restoration Act and my legal challenge against the NSA. The American people should not expect the fox to guard the hen house.”
Less formally, Paul gave this reaction:
BOOM: Rand Paul: “I think what I heard was if you like your privacy, you can keep it.”
— Steven Dennis (@StevenTDennis) January 17, 2014
Paul said this to Wolf Blitzer in his response to the speech:
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.
5) 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, while the chief judge of court 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.
Whether or not the data is “kept” by the government or a contractor is really immaterial. If government has access to it without advising consumers of a warrant for a search, then they essentially own it. That kind of rhetorical sleight-of-hand characterizes the entire speech, as Chuck Todd noted in his reaction:
Chuck Todd: “this speech is not a definitive speech of anything”
— HuffPost Media (@HuffPostMedia) January 17, 2014
This is an attempt to distance himself from the collection without giving it up. We’ll see how well that works.
Serious point .@AlexanderAbdo: Notable that President only addressed one form of bulk collection (call records), but no others.
— SalenaZito (@SalenaZitoTrib) January 17, 2014