President Obama gave a speech this morning outlining changes to be implemented in the NSA phone record surveillance program. The reforms are a result of an in-depth investigation into NSA intelligence gathering activities in the wake of revelations leaked by former NSA contractor Edward Snowden last summer.
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The changes are definitely a step in the right direction, but privacy advocates are likely to be underwhelmed. The quick summary is that President Obama is proposing a shorter leash for NSA snooping, but aside from that there aren’t really any fundamental changes in the intelligence gathering activities.
NSA intelligence analysts have been able to query the database of collected phone data more or less at will—based on their own subjective determination that a given number is a target of reasonable, articulable suspicion. The lack of official oversight gave the NSA too much latitude to spy on people. Under President Obama’s new system, intelligence analysts will have to seek approval from the secret Foreign Intelligence Surveillance Act (FISA) court before digging in to the database.
Even with FISA approval, NSA analysts will not be able to snoop as broadly as they have. The NSA has been casting a net that includes three degrees of separation—the targeted number, any numbers connected to that number, any numbers connected to the second number, and any numbers connected to the third number. Effective immediately, investigations will be limited to only two hops—eliminating the third tier of connected numbers.
The President is also asking advisers to explore how to move the phone records database out of government control. It’s unclear how that will be accomplished, but they have 60 days to come up with a solution.
Finally, Obama is asking Congress to put together a panel of public advocates to represent the general population before the FISA court. The panel would be made up of technology, privacy, and civil liberties advocates. This is arguably the most important of the reforms proposed by President Obama because it will give some voice to law abiding citizens with the secret court that meets behind closed doors. It is unclear at this point, though, just how much weight the panel will have, and under what circumstances the panel would be allowed to intercede.
The President’s Review Group on Intelligence and Communications Technologies produced a 300-plus page report, outlining 46 recommendations in all for how to reform the intelligence community to enable it to do its job without blatantly ignoring the Constitution or trampling the rights of law abiding citizens. Most of those recommendations are either being ignored completely, or they’re being delayed for further review.
A post on the Electronic Frontier Foundation (EFF) Deeplinks Blog, praised President Obama, but cautions that there is still a long way to go. It quotes EFF legal director Cindy Cohn stressing, “Now it’s up to the courts, Congress, and the public to ensure that real reform happens, including stopping all bulk surveillance—not just telephone records collection. Other necessary reforms include requiring prior judicial review of national security letters and ensuring the security and encryption of our digital tools, but the President’s speech made no mention of these.”
Part of the problem in trying to rein in the activities of the NSA is that there was already a Constitution in place, and there was already some manner of congressional oversight. The NSA seems to have decided that its mission and the interests of national security trumped the rules, and operated with impunity despite those restrictions. There are no guarantees that these reforms will affect any real change, and it’s virtually impossible to monitor the activities of an agency that exists in the shadows of national security.