Last Friday, President Obama made a much anticipated speech at the Department of Justice outlining his proposed reforms of the National Security Agency's domestic surveillance program, with a particular focus on the NSA's clandestine collection of the records of essentially every American's telephone calls. Yesterday, the federal government's Privacy and Civil Liberties Oversight Board issued a legal and operational analysis of the agency's telephone spying program, concluding that it "implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value." How limited? "We have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation," the board stated. The report recommended that the program be ended.
In his speech, the president said that he had consulted with the board. If so, he did not heed their advice. Instead of ending the domestic telecommunications spying program, Obama offered what he characterized as "a series of concrete and substantial reforms" to rein in some aspects of domestic surveillance. These include a new executive order on signals intelligence—that is, spying on digital communications—in which intelligence agencies are instructed that "privacy and civil liberties shall be integral considerations." I feel safer already.
The drafters of the executive order are acutely aware that revelations like those made by NSA whistleblower Edward Snowden can embarrass officials. Because of this, the order admonishes intelligence bureaucrats to make damned sure their spying actually provides some benefit greater than the embarrassment officials will suffer should they be disclosed. This is basically the "front page test," in which officials ask themselves how they would feel if what they are doing were reported on the front page of a newspaper. If it would discomfit them, they shouldn't do it.
Meanwhile, for all its language about being more transparent and solicitous of civil liberties, the new executive order includes a secret classified addendum.
Besides the executive order, other reform proposals include a directive to the director of national intelligence and the attorney general to review the secret opinions of the Foreign Intelligence Surveillance Court each year, to see which (if any) can be declassified. In addition, the president asked Congress to create a panel of advocates who could provide an independent voice in significant cases before the FISC. What might constitute a "significant case" and who would make that decision was left vague.
The FBI issues thousands of national security letters (NSLs) each year demanding personal customer records from Internet service providers, financial institutions, and credit companies without prior court approval. In addition, the FBI usually imposes indefinite gag orders on anyone who receives an NSL, forbidding them to tell anyone else about it. While the president proposed nothing to limit the issuance of NSLs, he did promise to amend the use of NSLs so that the gag orders are no longer indefinite—unless "the government demonstrates a real need for further secrecy." He further promised to let communications providers give the public more information about the NSLs they receive. Earlier this week, for example, Verizon was permitted to tell us that the number of NSLs it received last year was somewhere between 1,000 and 2,000. How transparent!
In December, the president's handpicked Review Group on Intelligence and Communications Technologies recommended that the government not issue NSLs unless it first shows a court that it has "reasonable grounds to believe that the particular information sought is relevant to an authorized investigation" involving "international terrorism or clandestine intelligence activities." They also said that the gag orders should last only 180 days unless reauthorized by a court, and that the orders' recipients should be able to challenge them. The president ignored those recommendations.
The review group also argued that "the government should not be permitted to collect and store mass, undigested, non-public personal information about U.S. persons for the purpose of enabling future queries and data-mining for foreign intelligence purposes." Instead, telecom companies or a third-party private consortium should hold such records, which the government could search only pursuant to judicial order. The president half-adopted those recommendations by ordering the intelligence community and the attorney general to try to figure out a way to transition from the NSA bulk collection database to "a new approach that can match the capabilities and fill the gaps that the Section 215 program was designed to address."
Three leading civil liberties groups—the Electronic Frontier Foundation, the Center for Democracy and Technology, and the American Civil Liberties Union—have issued scorecards on the speech. All three commended the president for his half-measures to rein in the NSA's bulk telephone spying program. All three also gave the president some points for suggesting that some kind of independent privacy advocate should be appointed to argue for civil liberties protections before the Foreign Intelligence Surveillance Court.
But all three excoriated the president for not eschewing future efforts by the NSA to systematically weaken and sabotage encryption and Internet security technology. The groups also denounced the president for not ordering that national security letters issue only with prior judicial approval. Overall, they concluded, the president flunked. The Electronic Frontier Foundation gave the president a score of 3.42 out of a possible 12. The Center for Democracy and Technology gave him 4 points out of a possible 11. The American Civil Liberties Union was kindest, awarding Obama 4.5 points out of a possible 11.
"Permitting the government to routinely collect the calling records of the entire nation fundamentally shifts the balance of power between the state and its citizens," the Privacy and Civil Liberties Oversight Board warned yesterday. Its report added that "while the danger of abuse may seem remote, given historical abuse of personal information by the government during the twentieth century, the risk is more than merely theoretical." Secret government is always the chief threat to liberty.
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