The President on Mass Surveillance


Editorial – The New York Times

Jan. 17, 2014

In the days after Edward Snowden revealed that the United States government was collecting vast amounts of Americans’ data — phone records and other personal information — in the name of national security, President Obama defended the data sweep and said the American people should feel comfortable with its collection. On Friday [17 Jan 2014], after seven months of increasingly uncomfortable revelations and growing public outcry, Mr. Obama gave a speech that was in large part an admission that he had been wrong.

The president announced important new restrictions on the collection of information about ordinary Americans, including the requirement of court approval before telephone records can be searched. He called for greater oversight of the intelligence community and acknowledged that intrusive forms of technology posed a growing threat to civil liberties.

“Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power,” Mr. Obama said in a speech at the Justice Department. “It depends on the law to constrain those in power.”

But even as Mr. Obama spoke eloquently of the need to balance the nation’s security with personal privacy and civil liberties, many of his reforms were frustratingly short on specifics and vague on implementation.

The president’s most significant announcement was also the hardest to parse. He ordered “a transition that will end” the bulk collection of phone metadata as it currently exists, but what exactly will end? The database will still exist, even if he said he wants it held outside the government. Mr. Obama should have called for sharp reductions in the amount of data the government collects, or at least adopted his own review panel’s recommendation that telecommunications companies keep the data they create and let the National Security Agency request only what it needs. Instead, he gave the Justice Department and intelligence officials until late March to come up with alternate storage options, seeking a new answer when the best ones are already obvious.

But he added two restrictions that could significantly reduce the possibility of abuse of this information: Wherever the database resides, he said, it may be queried only “after a judicial finding or in the case of a true emergency.” (That calls for a clear definition of “emergency.”) Agency analysts will be permitted to pursue phone calls that are two “hops” removed from a number associated with a terrorist organization, instead of three. That extra hop allowed for the examination of an exponentially larger number of phone calls.

Mr. Obama did not address the bigger problem that the collection of all this data, no matter who ends up holding onto it, may not be making us any safer. That was the conclusion of the president’s review panel as well as a federal judge in Washington who ruled that the bulk-collection program was probably unconstitutional and an extensive report by the New America Foundation finding that the program “has had no discernible impact on preventing acts of terrorism and only the most marginal of impacts on preventing terrorist-related activity.”

Mr. Obama called on Congress to create a panel of independent advocates to argue in significant cases before the intelligence court, which currently hears arguments only from the government and must rely on government officials to identify and disclose their own mistakes. That would be a huge improvement to the one-sided process that often turns the court into a rubber stamp, but Congress is likely to dither over it. It would be better for the president to create the panel himself and work with the courts to find independent members. At the same time, any public advocate must be free to decide what cases to argue and not be limited to the administration’s or the court’s view of what is “significant.”

Mr. Obama wisely sought to tamp down the international furor over surveillance of foreign leaders and ordinary citizens by announcing restrictions on the collection, use and retention of that data. He said he would extend certain protections normally afforded only to Americans. “People around the world, regardless of their nationality, should know that the United States is not spying on ordinary people who don’t threaten our national security,” Mr. Obama said.

Several of the presidential review panel’s key recommendations were not addressed on Friday. The panel said a court order should be required to search through Americans’ emails or calls that are incidentally intercepted; the president called only for unspecified reforms. He rejected the recommendation that judges sign off on the subpoenas used by the F.B.I. to demand business records, known as national security letters, saying only that they should be less secret. That doesn’t go nearly far enough to curb these orders, which have been abused. Mr. Obama said nothing about the process of selecting intelligence-court judges, which now resides solely in the hands of one man, Chief Justice John Roberts Jr. He also failed to address the panel’s call for the N.S.A. to stop undermining commercial efforts to create better encryption technology.

One of his biggest lapses was his refusal to acknowledge that his entire speech, and all of the important changes he now advocates, would never have happened without the disclosures by Mr. Snowden, who continues to live in exile and under the threat of decades in prison if he returns to this country.

The president was right to acknowledge that leaders can no longer say, “Trust us, we won’t abuse the data we collect.” But to earn back that trust, he should be forthright about what led Americans to be nervous about their own intelligence agencies, and he should build stronger protections to end those fears.

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