NSA changes? Think again
posted at 9:21 am on January 22, 2014 by Ed Morrissey
Last week, Barack Obama outlined what he called “reform” of American signals surveillance — the end of the Section 215 program at NSA, but only “as we know it.” The “reform” doesn’t actually end anything, but merely transfers ownership of collected telecom metadata to some unspecified third party … at some point in time. It also throws a couple of more essentially meaningless hurdles between NSA and access to the data by having the FISA court grant approval, when the FISA court almost always does so anyway. The government will still collect the data, will still have access to the data, and still will not need to get a specific search warrant to mine the data.
Even those cosmetic changes may not work, however:
U.S. officials directed by President Obama to find a way to end the government’s role in gathering Americans’ phone records are deeply concerned that there may be no feasible way to accomplish the task soon, according to individuals familiar with the discussions.
In a speech last week, Obama put the Justice Department and the Office of the Director of National Intelligence in charge of developing a plan by March 28 to transfer control of the massive database of records away from the National Security Agency — a step aimed at addressing widespread privacy concerns. But even among U.S. officials who applauded the recommendation in principle, there is a growing worry that the president’s goals are unattainable in the near future, officials said.
Telephone companies have said they do not want to be responsible for the database, and no one has come up with a workable idea for how a third party could hold the records.
“The idea that this complicated problem will be solved in the next two months is very unlikely, if not impossible,” said one official with knowledge of the discussions. “It is not at all inconceivable that the bulk collection program will stay the same, with the records held by the government until 2015,” when the law that authorizes the bulk collection is set to expire.
One would think that a President preparing a major policy speech on reforming a controversial and unpopular government program would have lined up the changes announced to make sure it would work. A prepared executive would have made sure his team met with all the stakeholders, gotten agreements on partnerships, and worked with legislators to ready any statutory changes necessary. President Obama, on the other hand …
No meeting has been scheduled between government officials and the phone companies to discuss the issue, and no decision has been made about approaching the companies to further discuss the possibility of them holding the records.
In other words, Obama wrote a speech, and then his team has to figure out how to make it work. As the Associated Press reported (two days before the Post, as Gabriel Malor noted), the short answer is that it won’t:
Despite Obama’s plans to shift the National Security Agency’s mass storage of Americans’ bulk phone records elsewhere, telephone companies do not want the responsibility. And the government could face privacy and structural hurdles in relying on any other entity to store the data.
Constitutional analysts also question the legal underpinning of Obama’s commitment to setting up an advisory panel of privacy experts to intervene in some proceedings of the secret Foreign Intelligence Surveillance Court, which oversees the NSA’s data mining operations. Obama has asked Congress to set up such a panel, but senior federal judges already oppose the move, citing practical and legal drawbacks. …
Obstacles to enacting Obama’s plans are expected to mount quickly as administration officials and legislators grapple over what sort of entity will oversee the calling records swept up by the NSA. Obama ordered the Justice Department and intelligence officials to devise a plan within the next two months.
Privacy advocates also questioned the administration’s silence on what it will do with hundreds of millions of phone records, at minimum, that are now kept on file in government inventories. Citing the NSA’s plans to build a vast data storage facility in Utah, Romero said “there was nothing in the president’s speech about what’s already in the government’s hands.”
Obama’s task force, the Review Group on Intelligence and Communications Technologies, had recommended cutting the time that the NSA could retain private records from five to two years. But Obama’s proposals do not address the issue of duration, leaving those records still in NSA control for the foreseeable future.
The NSA’s Section 215 surveillance has been an issue for months. Congress has held multiple hearings on the program, it has led the news with each new revelation, and it’s an anchor on Obama’s approval ratings with younger voters — the very people Democrats will need in November. And yet, it’s clear that the White House half-assed the “reform” response, apparently believing that all they needed was a pretty speech to fix the (political) problem.
Speaking of politics and working with Congress, John Boehner has a message for Obama on NSA reform — don’t play politics:
In a brief statement on Friday afternoon, the Ohio Republican said Obama “must not allow politics to cloud his judgment” in making tweaks to the systems in place to keep Americans safe.
“The House will review any legislative reforms proposed by the administration,” Boehner said, “but we will not erode the operational integrity of critical programs that have helped keep America safe.”
Certain practices have come under fire after former NSA contractor Edward Snowden leaked classified information regarding the extent of mass data collection by the government. Some argue that such collection of meta data it constitutes a serious infringement on privacy and civil liberties.
“Our national security programs exist to root out terrorist threats and save American lives — and they have,” Boehner said. “Because the president has failed to adequately explain the necessity of these programs, the privacy concerns of some Americans are understandable.
“When considering any reforms, however, keeping Americans safe must remain our top priority,” Boehner continued. “When lives are at stake, the president must not allow politics to cloud his judgment. I look forward to learning more about how the new procedure for accessing data will not put Americans at greater risk.”
He’ll see that when the Obama administration finally starts doing its homework and produces a procedure. At this rate, that’ll be after the midterms. Don’t expect any changes soon, or probably, at all.