Obama Promises Reform of NSA Spying, But the Devil Will Be in the Details
Earlier today, President Obama held a press conference to address the growing public concern over the National Security Agency’s surveillance practices. We are glad to see that the Administration has been forced to address the matter publicly as a result of the sustained public pressure from concerned voters as well as the ongoing press coverage of this issue. Obama acknowledged that Americans were uncomfortable with the surveillance that has been leaked to the media (and noted that he would be as well, if he weren’t in the government). He made four commitments to transparency and reform during the press conference, and also published a whitepaper describing the legal interpretation of the PATRIOT Act that is used to attempt to justify bulk surveillance.
While we’re glad Obama is responding to the public’s concerns, we take Obama’s promises today with a healthy dose of skepticism. He may be paying lip service to accountability and transparency, but the devil will be in the details when it comes to whether his proposals will be effective.
Other promises aside, President Obama did not commit to reducing the surveillance of Americans’ communications or the communications of individuals abroad who are not suspected of any crime.
Obama’s 4 Commitments – And What’s Missing
Obama made 4 specific commitments around NSA surveillance. Here’s an overview of what he did – and did not – promise to do.
1. Obama will work with Congress to "pursue appropriate reforms to Section 215 of the Patriot Act." This is the subsection of law used to justify the bulk collection of telephone records. Several bills have been introduced this Congress that attempt to tighten up this law, and we’re glad to see Obama will be supportive of such efforts. However, Obama pointedly did not address Sec. 702, the other statute that the government has cited as supporting its broader surveillance, including the content of communications. And as we’ve explained, to return Americans to the rule of law and privacy and free speech rights that they deserve, we’ll need changes well beyond Section 215 of the PATRIOT Act. And even as to 215, Obama failed to explain what "appropriate reforms" might look like. Read what EFF thinks should be in NSA reform legislation.
2. Obama will work with Congress to improve public confidence in the Foreign Intelligence Surveillance Court (FISC) by creating a public advocate that can defend privacy in the court. We were pleased that Obama specifically promised "to make sure civil liberties concerns have an independent voice, in appropriate cases, by ensuring that the government's position is challenged by an adversary" in the extremely secretive FISC. This could be a powerful reform, and one we would wholeheartedly support (especially, for example, if organizations like EFF can serve as the adversary on occasion). However, whether this is actually implemented in a meaningful way remains to be seen. A public advocate in the FISC should be involved in every proceeding, not just "in appropriate cases." Furthermore, that advocate would need full access to the materials the government will be using in presenting its case to the judge. And finally, we remain concerned that this position will be subject to capture unless it has at least the sort of independence and protections that public defenders enjoy.
3. Obama has directed the intelligence community "to make public as much information about these programs as possible." First, "these programs" must include "all surveillance programs," not just those that have been leaked so far. The NSA is supposed to put in place a full time civil liberties and privacy officer and create a website that details its surveillance practices. This should have happened long ago, though we think this is a step in the right direction. However, any such website must actually provide real answers about surveillance rather than obfuscations and word games.
4. Obama is creating a "high level group of outside experts to review our entire intelligence and communications technologies." This group will be tasked with creating an interim report in 60 days and a final report by the end of the year that should address the impact of surveillance technologies, including potential abuses as well as the impact on foreign policy. We’re not certain whether Obama is planning on having the Privacy and Civil Liberties Oversight Board fulfill this role or whether he is planning on creating a new board, but it is very clear that any group of experts will struggle to have independence, adequate subpoena power, resources and staff time, as well as the political clout necessary to have a meaningful impact on our current surveillance regime. We hope that Obama ensures that this expert board has the information it needs to do its job.
While we were skeptical about other aspects of the press conference, we were pleased to see Obama acknowledge the benefits of privacy enhancing technology. He stated that "[T]echnology itself may provide us some additional safeguards. So for example, if people don't have confidence that the law, the checks and balances of the court and Congress, are sufficient to give us confidence that government's not snooping, well, maybe we can embed technologies in there that prevent the snooping regardless of what government wants to do. I mean, there may be some technological fixes that provide another layer of assurance." We agree that encryption tech is one powerful way to protect yourself from surveillance, and hope this means that the Administration will stop its efforts to pass CALEA II, which would undermine such technological fixes.