Yesterday President Obama gave a much-anticipated speech on his intentions to reform the controversial NSA programs revealed to us by Edward Snowden. Obviously, this is a subject on which I have a lot of feelings. So first I’m just going to give a quick rundown of the changes he talked about that interest me most.
- He has given orders to the Director of National Intelligence (DNI) and the Attorney General (AG) to review future opinions and orders from the Foreign Intelligence Surveillance Court (FISC) to declassify those that have a significant impact on privacy rights.
- There are also plans to build a “panel of advocates from outside government to provide an independent voice in significant cases.”
- The AG and DNI have been directed to introduce new reforms restricting the ability to search, retain, and use communications between Americans and foreign nationals in criminal cases.
- Going forward, he intends that the NSA database of bulk phone metadata records can only be queried after a judicial finding or in a “true emergency.” The DNI, AG, and others in the meantime will be coming up with proposals for new ways to store this metadata. Oh, and instead of being able to collect data on anyone within three hops of a surveillance target, now the NSA can only do so to people within two hops of a target.
There were several other reforms introduced in the speech (you can read the full list from the link above,) but these are the ones I will be focusing on. First I’ll give you some of the thoughts I had just off the cuff as I was reading the transcript, then I’ll bring in some arguments from other writers.
So, for reforms 1 and 2 above, my first question is: what are the criteria to determine whether an opinion, order, or case is significant? Because a lot of the efficacy of these reforms will hinge on that.
For 3…well, it is likewise fairly vague, so I don’t have much else to comment on right now.
And for 4: it seems to me that, despite Obama’s efforts to present this as major reform, the takeaway here is that there is no intention whatsoever to stop or scale down bulk collection of our metadata. So these changes seem cosmetic at best.
In fact, Obama has rejected his own panel on NSA reform’s suggestion for third party storage of bulk metadata. (Which, I admit, does not seem any better to me than the government storing said metadata.) That point is a fairly minor detail; the big picture is that this kind of widespread surveillance and bulk collection of data seems to be here to stay. This focus on tinkering with the details can almost serve as a form of diversion from a real debate over the NSA’s reach and power.
Conor Friedersdorf at The Atlantic provides some good critiques of the speech. One that did not immediately occur to me as I read the speech but seemed obvious as soon as Friedersdorf pointed it out is that almost all of the reforms Obama has presented are changes within the executive branch that can be undone by the next president just as easily as they are being introduced now. While Obama mentioned his willingness to work with Congress to pass other reforms into law, he did not mention anything specific he would like to see them do.
And in his Presidential Policy Directive (PPD) introducing these changes, Obama wrote:
“Nothing in this directive shall be construed to prevent me from exercising my constitutional authority, including as Commander in Chief, Chief Executive, and in the conduct of foreign affairs, as well as my statutory authority. Consistent with this principle, a recipient of this directive may at any time recommend to me, through the APNSA, a change to the policies and procedures contained in this directive.”
Which basically is to say: None of this stops me from not following these guidelines if I decide I don’t want to.
So that is not particularly encouraging.
And of course, the speech did not touch on reforming whistleblower protections. Although Obama said that the current debate over these surveillance programs would strengthen our nation, he nonetheless continued to vilify Edward Snowden for, in effect, ensuring that this debate took place. So how he makes that logical leap (debate good, person enabling debate bad) is still a mystery to me.
Ultimately, despite any claims to the contrary, the changes proposed in this speech are cosmetic and could easily be undone by future executives (provided Obama pushes them through in the next three years the first place.) To finish, I’ll leave you with links about the effectiveness (or lack thereof) of these NSA tactics, a comment on the “systemic overcollection” of data by the agency (which Obama says has never intentionally violated the law), and some predictions on the future of the surveillance state. Spoiler alert: it is set to keep growing.
There is also a list of everything we currently know the agency can do.
Finally, a writer at The Progressive revisits President Eisenhower’s farewell speech and examines its extraordinary relevance today. The speech itself is only about 15 minutes and worth listening to.