Six months after Edward Snowden began leaking the NSA’s secrets, President Obama has agreed that the way America spies needs to change. But when it comes to the degree of that change, the White House has a long way to go towards pleasing its critics.
In a closely watched address Friday, Obama laid out a plan for reforms to the National Security Agency following Snowden’s leaks revealing the details of NSA surveillance programs that have outraged privacy advocates and some U.S. allies. In his speech, Obama responded with a plan to put greater limits on the use of phone metadata collected from millions of Americans, to add more privacy advocacy to the Foreign Intelligence Surveillance Act court debates over the use of data collected on Americans, and to limit the duration of the secrecy around the FBI’s National Security Letter requests for private data from communications companies.<</p>
"I believe it is important that the capability this program is designed to meet is preserved," Obama said of the phone metadata collection program, which has been perhaps the most controversial of Snowden's revelations. "But having said that, I believe critics are right to point out that that without appropriate safeguards this program could be used to yield more information about our private lives and to open the door to more intrusive bulk collection programs in the future."
"They're also right to point out that the [program] has never been subject to vigorous public debate," he added. "For all these reasons, I believe we need a new approach."
But that "new approach," which Obama laid out in his speech and in a presidential policy directive published at same time, fell far short of the more fundamental reforms demanded by many of his privacy critics.
The civil libertarian Electronic Frontier Foundation, for instance, had called on the president to stop all mass surveillance of digital communications of both Americans and foreigners. Obama’s compromise, that the data only be used to surveil someone two degrees of separation from a suspected terrorist instead of the current standard of three, that the use of the data be subjected to a more balanced judicial review, that the data be held by an entity other than the NSA–exactly where remains to be determined–and that the program be conducted with greater transparency, didn’t come close to that demand.
“Obama took some real steps here,” said EFF Legal Director Cindy Cohn. “But the NSA has overstepped its boundaries in so many areas that there’s much more to go.”
In fact, on a scorecard of twelve points where the it called on Obama to enact surveillance reforms, the EFF only gave the president credit for addressing only three and a half of their recommendations.
The EFF and others including the Cato Institute had also hoped that Obama would reform the use of National Security Letters, (NSLs) requiring that the secret gag orders demanding Americans’ private data from private companies only be issued with the oversight of a judge. On that issue, Obama agreed that a time limit should be set on the secrecy of those orders, but argued that to require judicial review for all NSLs would be to “set a standard for terrorism investigations that’s higher than those involved in investigating an ordinary crime.”
But Julian Sanchez of the Cato Institute pointed out that the lack of judicial oversight of NSLs goes against even the recommendations the review board set up by the White House to recommend surveillance reforms. “It was disappointing…to see that many of the recommendations offered by Obama’s own Surveillance Review Group were either neglected or specifically rejected,” he wrote in a statement. “While the unconstitutional permanent gag orders attached to National Security Letters will be time-limited, they will continue to be issued by FBI agents, not judges, for sensitive financial and communications records.”
Several of the most controversial issues raised by Snowden’s leaks went unaddressed. Perhaps the most crucial were the NSA’s use of security exploits to attack commonly-used software, and creation of backdoors in cryptographic standards to weaken encryption schemes. On both of those issues, critics have accused the NSA’s blind pursuit of surveillance targets as making the Internet less secure for all users.
The president’s statements also remained vague on what privacy protections might be given to foreigners, who have no legal protections from the NSA’s spying. He pledged that the agency wouldn’t surveil the communications of world leaders, but noted at the same time that its mission includes learning the intentions of foreign governments. “Our intelligence agencies will continue to collect information about the intentions of governments, as opposed to ordinary citizens, around the world, in the same way the intelligence services of every other nation does,” he said. “We will not apologize simply because our services may be more effective.”
But Obama, at least in his rhetoric, seemed to acknowledge the need for the privacy debate that has come into national and international focus following Snowden’s leaks. “What’s really at stake is how we remain true to who we arein a world that’s remaking itself at dizzying speed..technology is remaking what’s possible for individuals and institutions and for the international order,” he said. “So while the reforms I’ve announced will point us in the right direction, I am mindful that more work will be needed in the future.
One thing I’m certain of,” he added. “This debate will make us stronger.”
Read the president’s full policy directive below: