Scorecard: Will Obama Hit The Mark On Real NSA Reform?
January 16, 2014 by Electronic Frontier Foundation
The Electronic Frontier Foundation is planning to grade the President’s forthcoming National Security Agency “reform” package, and they’re asking Americans to make their wishes known before Obama unveils his plan on Friday.
On Friday, President Barack Obama will announce changes and potential reforms he will make to the National Security Agency (NSA). What can we expect? Many people are skeptical that the president will create meaningful limits to the NSA’s practice of sweeping up the digital communications of millions of people worldwide. Instead of actually stopping the spying, Obama could just make pronouncements calling for more transparency or additional layers of bureaucratic oversight. Basically, he could duck the most important thing he could do to show leadership: rein in government surveillance.
We’ve compiled a list of common-sense fixes that the President could—and should—announce at his briefing on Friday. Many of these are similar to measures proposed by the president’s own Review Group on Intelligence and Communications Technologies, which produced a report with over 40 recommendations last month. The list below is not comprehensive, but it addresses the central problems with NSA surveillance. Fixing all of them will go a long way toward restoring America’s trust in its government and resolving some of the most egregious civil liberties abuses of the NSA.
We’ll be scoring Obama’s presentation on Friday and we’ll let you know which, if any, of these reforms he supports. You can help us pressure Obama in the coming days by tweeting these reforms at him.
1. Stop mass surveillance of digital communications and communication records.
It doesn’t matter what legal authority is being cited—whether it’s the Patriot Act, the FISA Amendments Act, or an executive order—the government should not be sweeping up massive amounts of information by and about innocent people first, then sorting out whether any of its targets are included later. The NSA has disingenuously argued that simply acquiring this data isn’t actually “collecting” and that no privacy violation can take place unless the information it stores is actually seen by a human or comes up through an automated search of what it has collected. That’s nonsense. The government’s current practices of global dragnet surveillance constitute general warrants that violate the First and Fourth Amendments, and fly in the face of accepted international human rights laws. Obama needs to direct the NSA to engage only in targeted surveillance and stop its programs of mass surveillance, something he can do with a simple executive order.
2. Protect the privacy rights of foreigners.
The NSA’s surveillance is based upon the presumption that foreigners are fair game, whether their information is collected inside the US or outside the US. But non-suspect foreigners shouldn’t have their communications surveiled any more than non-suspect Americans. The review group recommended limited protections for non-US persons and while that is a good start, the president should do more to ensure that actual suspicion is required before either targeted or untargeted surveillance of non-US persons.
3. Don’t turn communications companies into the new Big Brother: no data retention mandate.
Obama’s review group recommended ending the NSA’s telephone records program, which we strongly agree with, but then indicated that a reasonable substitute would be to force American communications companies to store the data themselves and make it available to the government. The group ultimately recommended a data retention mandate if companies won’t comply voluntarily. But companies shouldn’t be pressed into becoming the NSA’s agents by keeping more data than they need or keeping it longer than they need to. To the contrary, companies should be working on ways to store less user data for less time—decreasing the risks from data breaches and intrusions like the one that just happened to Target. Data retention heads in the wrong direction for our security regardless of whether the government or private parties store the information.
4. National Security Letters need prior judicial review and should never be accompanied by a perpetual gag order.
One recommendation of the review group we heartily endorse is reining in National Security Letters. The FBI uses these letters to demand user data from communications service providers with no judicial review. Providers are forbidden from talking about receiving NSLs, which means the letters also serve as perpetual gag orders. EFF was successful in convincing a federal judge to strike down these NSLs last year. The case is on appeal but Obama can remedy the situation more quickly by instructing the FBI not to issue NSLs without prior judicial review, and to limit its use of gag orders.
5. Stop undermining Internet security, weakening encryption, and infiltrating companies.
Recent revelations show that the NSA is undermining Internet encryption, making us all less secure when we use technology. These practices include weakening standards, attacking technology companies, and preventing security holes from being fixed. As the president’s review group recognized, this has serious consequences for any industry that relies on digital security—finance, medicine, transportation, and countless others, along with anyone in the world who relies on safe, private communication. Obama should follow the recommendations of his review group and immediately stop the NSA’s efforts to undermine or weaken the security of our technologies.
6. Oppose the FISA Improvements Act.
The FISA Improvements Act, promoted by Sen. Dianne Feinstein, a stalwart defender of the NSA, would codify mass surveillance by the NSA and potentially extend the spying. Obama should make clear that he opposes the bill and would veto it if it came to his desk.
7. Reject the third party doctrine.
Obama should announce that it will be the policy of the Justice Department that data held by a third party (such as a telecom company or an Internet service provider) has the same constitutional protections as data stored at home. This will help correct deeply flawed Supreme Court rulings from the 1970s, which found that people who allowed companies store their data had no expectation of privacy in it, and will support efforts to update the Electronic Communications Privacy Act to reflect current realities of how we use technology.
8. Provide a full public accounting of our surveillance apparatus.
Obama is fond of saying that the public misunderstands the government’s surveillance programs because they are being brought to light in “dribs and drabs” based on whistleblower evidence. To remedy this, Obama should appoint an independent committee to give a full public accounting of surveillance programs that impact non-suspects around the world. This does not mean revealing specific methods for tracking terrorists, but it does mean providing a comprehensive review of the legal authorities relied upon and the surveillance programs that affect non-suspect members of the public. The appointed committee should directly engage whistleblowers like Thomas Drake, William Binney, Edward Snowden and others, and include independent technological experts.
9. Reform the state secrets privilege and stop overclassifying.
For years, the government has fought accountability in the courts by claiming all of the information related to surveillance programs is a “state secret.” The government should commit to continue the work started by Sen. Ted Kennedy to reform the state secrets privilege to ensure it is no longer used to shield abuses from public accountability. In a similar vein, the government routinely classifies documents that would pose no danger to our security if they are made public. In fact, the classification system is often abused to hide information about government abuses of power. We need to embrace transparency, not secrecy, as the default, in our courts and our public discourse, both to better protect actual secrets and to better hold the government accountable for its actions.
10. Reform the FISA court: provide a public advocate and stop secret law.
There are myriad problems with the Foreign Intelligence Surveillance Court, the secretive court system that signs off on national security surveillance requests. Two of the biggest are: 1. One-sidedness: Government lawyers argue for surveillance authority in front of judges without any adversary in the room to argue for due process, privacy and civil liberties; 2. Secret law: The FISA court has created a huge body of secret law that impacts the communications of millions of Americans but is unknown to them. Obama should take preliminary steps to reform the FISA court by supporting calls for a public advocate to ensure an adversarial process in the courtroom. Further, the president should forbid the DOJ from blocking the publication of FISA court legal interpretations and only allow the redaction of true operational details.
11. Protect national security whistleblowers working for the public good.
Whistleblowers like Mark Klein, Kirk Wiebe, Thomas Drake, William Binney, Edward Snowden and others have provided the public with critical information about national security abuses that helped spark a much needed public debate about transparency, privacy, and the public’s relationship with its government. Yet some of these whistleblowers face decades in prison for their actions under outdated or misapplied laws. The president should not only instruct the DOJ to stop prosecuting whistleblowers who publicize information for the public good, but champion affirmative legislation to protect them.
12. Criminal defendants should know if national security surveillance is being used against them.
Recently released documents confirm that the NSA is sharing surveillance data with other US agencies, and that the FBI is running its own mass surveillance programs. Information gathered through these programs is being fed as “tips” into regular criminal investigations, with instructions to hide the origin of the information. This practice of intelligence laundering runs afoul of protections enshrined in the Fifth and Sixth Amendments, which guarantee a criminal defendant a meaningful opportunity to present a defense and challenge the government’s case. The president should make clear that criminal defendants have a right to be given notice of all surveillance information used to investigate or prosecute them as soon as risk to the investigation has passed and never later than when the accused faces trial.
We will publish a filled-out scorecard right after Obama’s speech on Friday. In the meantime, we have just days left before the announcement. Let’s use every moment we have to pressure Obama to really stop mass spying.