In spy terms, the changes to the National Security Agency’s surveillance programs announced Friday by President Obama are more on the level of desk analyst drudgery than sweeping James Bondian action.
Though the Administration touted the overhaul as ground breaking, a close reading of the president’s proposals shows that most of the reforms are unlikely to reassure privacy advocates. Moreover, those changes are still under review and many will be for quite some time.
The President repeatedly underlined that the surveillance programs had great value to national security and that none of the information gathered was being abused. “The United States only uses signals intelligence for legitimate national security purposes, and not for the purpose of indiscriminately reviewing the emails or phone calls of ordinary people,” Obama said in the speech at the Justice Department. “Now let me be clear: our intelligence agencies will continue to gather information about the intentions of governments—as opposed to ordinary citizens—around the world, in the same way that the intelligence services of every other nation does. We will not apologize simply because our services may be more effective.”
Bowing to public outrage, however, Obama announced some changes and a lot more studying of the problem. Will your metadata still be collected and kept for years? Yes, though the government may not have easy access to the data if all goes as planned. Will the U.S. keep spying abroad? Absolutely, but the government has made an exception for some heads of state. Will the U.S. still keep incidental information collected on Americans? Yes, but it will review how to keep that information more private. Will the Foreign Intelligence Surveillance Act court exercise more oversight on NSA activities? Pending approval by Congress, the court will have a Congressionally-appointed panel it will have to consult on some “novel” cases—of course, all still in secret.
So what has changed? The government will still collect information about millions of telephone calls—the numbers called, the duration of the calls, but not the content. Instead of housing that information at the NSA, it will be kept elsewhere. Telephone companies have said they don’t want to be responsible for securing such a hot potato, so the government will take 60 days to study how an undetermined third party might keep the records. In the meantime, any NSA queries into the database will have to be approved by the secret FISA court. And information given out of the database will be limited to two “hops”—or degrees of separation–tracing the the links between the original caller, his contacts and their contacts. Previously the limit was three “hops”.
Obama said that some of the secrecy would, eventually, come to an end. Gag rules on companies that receive National Security Letters requiring cooperation in surveillance activities will be eased. Companies receiving the letters will, at some undetermined point, be able to reveal the existence of requests that aren’t extraordinarily sensitive.
The government also pledged that any incidental data collected about Americans in its spying abroad will be treated with more sensitivity to privacy. Any information about foreigners who aren’t terrorist suspects will be treated with the same respect.
The Administration did a review of surveillance of heads of state and while they didn’t “go down a list one by one,” said a senior Administration official in a call briefing reporters about the changes, the review did result in a “decision not to pursue surveillance on dozens of foreign leaders.” Which ones? The senior administration official couldn’t say. And, the official said, the review did not include any surveillance activities of any foreign leaders below heads of state.
Obama did not address other metadata collection programs, including those tracking e-mails, instant chats and other online communications. Those programs will be studied by John Podesta, a senior adviser to the President. What to do about them addressed at some point down the road.
Nor did the President react to calls by some to give amnesty to Edward Snowden, the former NSA contractor whose revelations over the past year caused the review. Snowden, who is facing charges in the U.S., has been granted temporary asylum by Russia. “Given the fact of an open investigation, I’m not going to dwell on Mr. Snowden’s actions or motivations,” Obama said. “I will say that our nation’s defense depends in part on the fidelity of those entrusted with our nation’s secrets.”
Finally, the President asked Congress to move to appoint a committee of outside privacy, civil liberties and technology experts who could consult with FISA courts on delicate cases. Of course, Congress doesn’t have to do this and given its dysfunction and disunity on the issue probably won’t have an easy or quick time doing it. Once done, what cases the committee would be consulted on are vague and indeterminate.
If all this sounds a little ambiguous and open-ended that’s because it is, and members of Congress from both parties expressed disappointment.
Obama didn’t address Arizona Senator John McCain’s call for a special select committee on NSA reform or various battling pieces of legislation in the House and Senate to overhaul the NSA. “President Obama’s speech today left many crucial questions unanswered,” McCain said in a statement.
“President Obama’s announced solution to the NSA spying controversy is the same unconstitutional program with a new configuration,” Senator Rand Paul, a Kentucky Republican, said in a statement responding to the speech. “The American people should not expect the fox to guard the hen house.”
Democrats on the party’s left were tepid in their response to the speech. “Even if implemented in full, the President’s proposals are not the end of our efforts to reign [sic] in excessive government surveillance – they are the first steps,” said Rep. John Conyers, a Michigan Democrat.
“Today’s speech by President Obama is a welcome step in the right direction, but the reforms proposed by the President are not enough,” said Rep. Jerry Nadler, a New York Democrat.
Even Obama’s allies on the Hill were non-committal. “We must give full and thoughtful consideration to the President’s actions announced today,” said House Minority Leader Nancy Pelosi.
Still, the Administration said that Friday’s changes were ground breaking. “This is without a doubt,” a senior Administration official told reporters on the call, “the most significant reform in our surveillance systems since President Obama took office.”