President Barack Obama’s announced changes to the National Security Agency Friday were dismissed by many privacy advocates, tech companies and politicians as do-nothing measures to preserve the surveillance state status quo.
Instead of the strong renouncement of the National Security Agency’s intrusive spy tactics critics had hoped for, the President delivered a handful flaccid half measures that will do little to limit the agency’s power.
Based on Obama’s announcement, the NSA will continue to hold on to troves of communications metadata until Congress figures out how it should be handled. The NSA will continue to comb through the records; and searches will be approved by a court with a dubious record of protecting the citizenry.
Furthermore, the Federal Bureau of Investigation will still not be required to obtain a court order before issuing national security letters demanding information about customers’ telephone and Internet activity from a private entity.
And best of all for the Nation’s spies—or, as Obama put it, your friends and neighbors— will continue to operate almost completely outside of the public view.
Unfortunately for Obama, NSA critics realized he was playing a shell game almost immediately.
TechFreedom President Berin Szoka issued the following statement noting that what the President didn’t say is more revealing than what he did:
The reforms announced today will certainly help address some of the greatest privacy concerns raised by U.S. surveillance. But the speech will probably be remembered most for the much-needed reforms it didn’t announce.
First, outsourcing the retention of call records to private companies is a fig leaf that conceals the real issue: the legal standard for access. The President would let the NSA access meta-data if it can establish “reasonable suspicion that a particular number is linked to a terrorist organization.” This standard is too low to protect the privacy of the innocent. In general, the Fourth Amendment requires a “probable cause” showing before a court may issue a warrant. The courts are struggling to address this issue based on a confusing series of 1970s cases about wiretapping. They seem to be moving, cautiously, to restoring the Founders’ understanding: there is one Fourth Amendment for all technologies, just as there is one First Amendment for all media. Until they do that, it’s up to Congress and the President to fix the problem.
Second, while the President made much about narrowing the purposes of U.S. surveillance of non-citizens, he didn’t actually promise any real changes about how that surveillance is conducted. This should trouble everyone everywhere, especially those who rely on American Internet companies. It’s bad news for those companies, who need the trust of their global user base. Failing to address international concerns will only help those trying to shut off cross-border data flows to U.S. companies. That would would spell the end of the Internet as an open, global platform and, ironically, facilitate surveillance by foreign governments with far fewer scruples.
Third, the President focused entirely on surveillance by national security agencies, saying nothing at all about the need for greater protections against law enforcement, from the IRS and DOJ to local prosecutors. That’s especially disappointing because, just last month, a Whitehouse.gov petition demanding a warrant requirement to protect cloud email services got well over 100,000 signatures. The White House has promised to respond to any petition that crossed that threshold. Today’s speech would have been the perfect opportunity to say, once and for all, that we need a consistent warrant requirement, an idea now supported by 169 Members of the House.
Cindy Cohn, Legal Director of the Electronic Frontier Foundation, suggested that nothing beyond completely ending mass surveillance will fix the NSA problem:
Mass non-targeted surveillance violates international human rights law. It is disproportionate because it sweeps up the communications and communications records of million of innocent people first and only sorts out second what is actually needed. Obama’s reforms take a step forward in recognizing that foreigners deserve at least some privacy, but to be consistent with the rule of law, the NSA must be forbidden from engaging in mass, untargeted surveillance in the U.S. or abroad.
WikiLeaks founder Julian Assange said that Obama should be embarrassed about the ineffectual offerings:
He said that Obama is a small man and it is “embarrassing for a head of state to go on like that for 45 minutes and say almost nothing.”
“Although those national whistle-blowers have forced this debate, this President has been dragged, kicking and screaming to today’s address. He is being very reluctant to make any concrete reforms,” Assange told CNN. “And unfortunately, today we also see very few concrete reforms.”
Senator Rand Paul (R-Ky.) took issued a statement re-iterating his belief that Obama overseeing the NSA is the same as a fox guarding a henhouse:
While I am encouraged the President is addressing the NSA spying program because of pressure from Congress and the American people, I am disappointed in the details. The Fourth Amendment requires an individualized warrant based on probable cause before the government can search phone records and e-mails. President Obama’s announced solution to the NSA spying controversy is the same unconstitutional program with a new configuration,” Sen. Paul said. “I intend to continue the fight to restore Americans rights through my Fourth Amendment Restoration Act and my legal challenge against the NSA. The American people should not expect the fox to guard the hen house.
He also threw a jab in the President’s direction via Twitter:
“If you like your privacy you can keep it…”: http://t.co/87XtZGoZvt
— Senator Rand Paul (@SenRandPaul) January 17, 2014
Representative Jeff Duncan followed a similar approach, with a bit more vitriol:
It took a gov’t contractor leaking classified information to the press for the POTUS to learn what the NSA was doing…
— Rep. Jeff Duncan (@RepJeffDuncan) January 17, 2014
And his statement on Facebook: “Think about this for a moment. It took a government contractor leaking classified information to the press for the President of the United States to learn what the NSA was doing. President Obama is either a spectator who has no idea what’s going on within his own White House, or he’s purposefully lying to save face with the American public, or he intentionally isolates himself from knowing the full truth to protect himself. Quite frankly, it’s disgraceful.”
And here’s a mixed bag selection of more Congressional Twitter response:
— Marsha Blackburn (@MarshaBlackburn) January 17, 2014
Proposed #NSA reforms don’t go far enough. Need hard limits on data collection type & storage time, & a privacy advocate throughout process
— Loretta Sanchez (@LorettaSanchez) January 17, 2014
Pres Obama NSA speech better than expected. Most programs left intact. But concerned about extending US citizen privacy rights to foreigners
— Rep. Pete King (@RepPeteKing) January 17, 2014