One year into a broken promise - Obama's NSA reform

Obama during his January 17, 2014 speech. Photo credit thinkprogress.org

We are coming up to the 1 year anniversary of President Obama's speech promising the American people reforms on how the NSA works (see transcript of speech here). Although the speech was an exercise in political babbling it had some promised reforms that would have limited the NSA's capabilities. On January 17, 2014 President Barack Obama promised the following reforms to the American people;

Strengthen Executive oversight and review of Intelligence operation.  

     

Obama said:

"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 American 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." 

Obama was intentionally vague in this regard because all he really said was - I admit that my national security team (specifically the NSA) overstepped some boundaries but you have to trust me that we will be more careful in protecting your privacy this time. In short Obama wants you to trust him - wink-wink nudge-nudge. 

Greater transparency in surveillance activities.

Obama said:

"Second, we will reform programs and procedures in place to provide greater transparency to our surveillance activities and fortify the safeguards that protect the privacy of U.S. persons. Since we began this review, including information being released today, we’ve declassified over 40 opinions and orders of the Foreign Intelligence Surveillance Court, which provides judicial review of some of our most sensitive intelligence activities, including the Section 702 program targeting foreign individuals overseas and the Section 215 telephone metadata program"

These declassification did shed more light to how the FISA court operates. The way Obama describes the FISA court as a Judicial review though is misleading. The FISA court only hears the governments side since it does not allow for a public advocate to create an adversarial challenge to the requests. The declassification described is also very misleading. Yes this was the biggest declassification of FISA court opinions but it is still the executive branch who decides which opinions can be declassified and which ones are not. This set-up has conflict of interest written all over it. Asking the executive branch to judge which orders have broad privacy implications and which ones are not is silly as they have the greatest interest to hide in a cloak of darkness and secrecy. 

Creation of a panel of public advocates in the FISA court.

Obama said: 

"To ensure that the court hears a broader range of privacy perspectives, I’m also calling on Congress to authorize the establishment of a panel of advocates from outside government to provide an independent voice in significant cases before the Foreign Intelligence Surveillance Court."

Congress has not established this panel and the White House has not give any policy guidance on how this was to be done. This promise was also another Obama trick in double-speak. The key to his statement is the fact that the panel of advocates will only be heard in "significant cases before the FISA court". Who decides which cases are significant? Why not a public advocate in all FISA hearings? This is very vague and leaves a huge loop-hole for the FISA court to continue to operate in a cloud of secrecy and under the control of the Intelligence apparatus that it is supposed to keep in Judicial review. 

Provide additional protections for activities conducted under Section 702

Obama said:

"Third, we will provide additional protections for activities conducted under Section 702, which allows the government to intercept the communications of foreign targets overseas who have information that’s important for our national security. Specifically, I’m asking the attorney general and DNI to institute reforms that place additional restrictions on government’s ability to retain, search and use in criminal cases communications between Americans and foreign citizens incidentally collected under Section 702."

Again Obama and his Attorney general has not bothered to clarify what these restrictions are and what additional protections are going to be put in place. In fact the Federal government through the FBI has been more cavalier in their ways of collecting information. Take the case of "stingrays". The FBI and the DOJ insists that people who use their cellphone in public have no reasonable expectation of privacy. With this doctrine in mind the FBI and the DOJ feels that the use of "sting-rays" in public is legal even if it collects information of innocent civilians not connected to their active investigation. Talk about additional restrictions. 

Reform how the government uses National Security Letters

Obama said:

"I’ve therefore directed the attorney general to amend how we use national security letters so that this secrecy will not be indefinite, so that it will terminate within a fixed time unless the government demonstrates a real need for further secrecy. We will also enable communications providers to make public more information than ever before about the orders that they have received to provide data to the government."

This has still not been realized and again for the same reasons the other promised reforms have not - vagueness and the lack of political leadership from the White House. No serious policy proposal was ever issued by the White House regarding this even though Obama's very own Intelligence Review group suggested the complete abolition of NSL's. When your review group suggests complete abolition the least you can do is create some clear limits on it right away or put a hold on it while reform is being implemented. 

Reform the NSA program on bulk meta-data collection.

Obama first justifies the collection of metadata as a no biggie - he said;

"Let me repeat what I said when this story first broke. This program does not involve the content of phone calls or the names of people making calls. Instead, it provide a record of phone numbers and the times and length of calls, metadata that can be queried if and when we have a reasonable suspicion that a particular number is linked to a terrorist organization."

He is towing the same government doctrine - meta data is not real data and is not a privacy concern. This is a ridiculous line of argument and one that has been debunked in so many ways. If the President and his supporters feel that meta-data is not real data then they should all publicly disclose the following information: 

• The phone numbers they call in any given day.
• The time of day the phone call was made and or received.
• The length of time of the phone call.
• Their physical location when the call was made.

Until any public official who supports this line of argument actually discloses these information then they are not to be believed. 

Obama said the reforms will proceed in two phases:

Phase 1:

"Effective immediately, we will only pursue phone calls that are two steps removed from a number associated with a terrorist organization, instead of the current three, and I have directed the attorney general to work with the Foreign Intelligence Surveillance Court so that during this transition period, the database can be queried only after a judicial finding or in the case of a true emergency." 

Phase 2:

"I have instructed the intelligence community and the attorney general to use this transition period to develop options for a new approach that can match the capabilities and fill the gaps that the Section 215 program was designed to address, without the government holding this metadata itself. They will report back to me with options for alternative approaches before the program comes up for reauthorization on March 28th. And during this period, I will consult with the relevant committees in Congress to seek their views and then seek congressional authorization for the new program, as needed." 

From his very first comment justifying the program under Section 215 he made it clear he was not going to make any significant changes to the program. Reducing the number of steps from three to two does not make much difference. When he says he is directing his Attorney General to work with the FISA court is balderdash. Throughout the speech he keeps referring to the FISA court as a legitimate and effective judicial review of the Executive's surveillance program - nothing can be further from the truth. Even when we look at the government's proposal to allow a public advocate to be present on "significant cases" shows the impotency of this "judicial body". The fact that the Executive branch can put a gag order on the courts opinion and that it can limit the access of a public advocate makes it another tool of the Executive's surveillance apparatus. 

Phase 2 of his proposal is even more laughable - it is merely transferring the load from the government to the private sector - it does not eliminate or limit the government's bulk data collection or its access to it. The Office of the Director of National Intelligence is still trying to find a private company who would hold the data collected by programs under Section 215 (see governments bid details here.) Nobody has been awarded the contract and the bulk data collection continues. If you read the bid guidelines from the DNI it clearly states that the data needs to be readily accessible by the government at any time. I do not see how this can be considered reform. 

One year after making these promises Obama has failed in making any of them come true. Yes the US Congress and Senate is partly to blame but Obama could have done a lot more. He is not shy in using his executive powers bordering on unconstitutionality when it comes to Immigration reforms. However, when it comes to ending a very perverse government surveillance program, he conveniently uses the legislative grid-lock in Capitol Hill as an excuse for inaction. The one simple thing he could have done to show his sincerity with reform was to not seek re-authorization for bulk meta-date collection while his proposed reforms have not been enacted. Instead he did ask for re-authorization and got it for another 90 days just last month (December 2014). 

My biggest worry right now is that with the rise of the ISIS threat and the growing concern for homegrown extremism the government will once again use fear to strengthen its surveillance apparatus. Yes terrorism is a real threat - especially the homegrown ones - but we should never buy the government's logic that in order to be truly safe we have to give up our privacy. This is an old tactic of every despotic regime and if we truly want to live in a democracy we should hold our privacy the most sacred right of all.