President Obama Steps Carefully on NSA Surveillance Reforms

By Peter Bernstein January 17, 2014

In a much-anticipated speech, President Obama has weighed in with his views on reforming the scandalized practices of the U.S. National Security Agency (NSA). Despite promises from administration officials in the run-up to the speech, given at the U.S. Department of Justice (DoJ) headquarters in Washington, D.C., that the president would outline actions that would go further than most were anticipating, the actions highlighted have already been received as not living up to expectations.

In remarks that were partly a history lesson on the tensions between intelligence and national security and the protection of civil liberties that date all the way back to the U.S. revolution and part an outline of proposed action items for the administration and Congress, the President could be characterized as treading lightly.

Collect but don’t listen

The fist of the now infamous Snowden revelations/leaks had to do with the NSA’s capture and storage of U.S. citizen phone call “metadata.” Despite repeated assurances from government officials that while the NSA was collecting but not listening, the President did say that Intelligence analysts will now need court approval to go into phone records to protect legitimate privacy concerns. These concerns in fact warrant removing NSA from the metadata storage business, a mechanism for which needs to be devised.  He also said actions will be taken to limit the NSA’s ability to in essence just snoop around by casting a wide net without boundaries.

In a not surprising acknowledgement of the problems Snowden has caused by disclosing NSA surveillance of foreign leaders, including allies, the President also noted he would sharply restrict such activities. This leaves open to interpretation what that might mean since an absolute ban was not the language used.  

Still on the drawing board

The speech, which was prompted by the administration’s promise to address a series of 46 recommendations by a panel of experts tasked to suggest changes in the law and agency practices, as critics have pointed out, is noteworthy because of what was not addressed.

The president did not accept or did not speak to the recommendations regarding:

  • Requiring court approval for national security letters, e.g., demands by government agencies for information on individuals from companies.
  • A Silicon Valley concern about that the N.S.A. “not in any way subvert, undermine, weaken or make vulnerable” commercial software, and that it move away from exploiting flaws in software to conduct cyber attacks or surveillance. As Huawei has been damaged in the U.S. and other markets because of its alleged practice embedding openings in its solutions to enable the Chinese government to use “back doors” to spy and possibly exploit windows of opportunity, tech companies in the U.S. feel that billions are at stake in their ability to be solutions suppliers internationally.  The president was silent on the subject, but one can be sure the lobbying on this is only going to grow more intense. It is extremely divisive since the intelligence community has argued that this would be akin to unilateral disarmament.    
  • President Obama also demurred on the panel recommendation to have members of the FISA (Foreign Intelligence Surveillance Act) court picked by appeals court judges rather than just the chief justice of the Supreme Court. Speculation is this was to avoid making such a proposal look like a personal attack on Chief Justice Roberts.  

That said, in a bit of a concession on FISA court powers, he did call for creation of a panel of advocates that could appear before the court. As noted in other accounts of the speech, this is problematic as administration officials said advocates would be called on only in “novel” cases, leaving open the question of who had the authority to decide what cases warranted an advocate.

Where are we now and where are we going?

The President’s full-throated defense of the authority of the NSA to do what it takes to defend U.S. national interests was masterful, along with his understanding about public angst that the “balance” between such activities and citizens’ civil rights have tilted in a dangerous direction that needs to be seriously considered. 

However, in the context of where do we go from here, there is much to be debated and ultimately resolved.  It does appear on first blush that the changes being proposed are incremental and not transformative.  This did not go further than most people thought for a simple reason: No President wants to have a legacy of purposefully diminishing the abilities of our intelligence community to do what it takes to keep America safe proactively or reactively.  The challenge with all balancing acts is that getting the details right in a dynamically changing theater of operations is temporal at best, and hence need to be subject to constant evaluation and tinkering. 

Whether the tinkering outlined by President Obama quiets the outrage of citizens, corporate interests and trading partners remains to be seen.  You can be sure there will be a lot of voices heard on the subject, and only hope that solutions when put forth do not die because of partisan bickering.  Clearly something needs to be done. The process will dictate which ones are digestible to all of the many stakeholders.  This may be a clash between national security interests and civil liberties, but there is also a lot of money on the line.  It does not get any bigger than this.  

Edited by Stefania Viscusi
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