As I noted earlier this week in an article on Federal Judge Richard Leon’s ruling that that bulk collection of phone calling metadata was in his view unconstitutional, that ruling was just the start of what promised to be a headline making week regarding the impact of the ongoing NSA scandal revelations by leaker Edward Snowden.  Well, for those looking for a big NSA headline early Christmas gift, December 18 was actually a daily double. 

First there was release of the report recommendations of an outside panel of experts appointed by President Obama on measures needed to reign in the NSA’s snooping activities. There was also a several hours meeting between President Obama and Vice President Joe Biden at the White House with 15 executives from the U.S tech industry’s leading companies (including Tim Cook, the CEO of Apple, Marissa Mayer, the CEO of Yahoo, Eric Schmidt, Google’s executive chairman and senior people from Comcast, Facebook, Microsoft, Twitter, and Randall Stephenson, the chairman and CEO of AT&T). 

The latter was originally called to discuss a variety of topics including problems with the troubled HealthCare.gov website. However, by all accounts what the tech execs wanted to talk about, and did, was their concerns that without a drastic overhaul of NSA practices the vitality of their businesses would be greatly imperiled. This led to a public relations positioning battle between the White House and the executives as to what the group spent their time on. 

In case you did not see the reports, the administration characterized the almost three hour discussions as focusing on the website and other things. However, the executives said they spent most of the time on NSA.  Interestingly, reports in various sources say the president and vice president were not part of the 45 minutes of this discussion on the website issues.

The panel calls for major restructuring

Let’s start with the recommendations of the outside advisers.  Arguing that in the past decade or more the National Security Agency (NSA) had over-reached and expanded its powers at the expense of personal privacy, the group of five advisers recommended a series of improved oversight changes and restrictions on NSA practices. These covered how NSA collects the telephone data of U.S. citizens, spies on foreign leaders and prepares for cyberattacks abroad.

A major recommendation of the 46 in the report had to do with the phone record collection of American’s which ironically was the first of the Snowden revelations.  As we all are too painfully know, NSA has been collecting the logs (aka metadata) of every phone call made in the USA, and has defended the practice as saying they don’t listen they just correlate data to keep the country safe.  The panel has recommended that the power of the NSA to be the keepers of the metadata should be altered. They want the data to either remain in the custody of telecom companies or in those of a private consortium, and that a court order should required when government security analysts want to access data on any individual “for queries and data mining.”

As detailed in the New York Times reporting on the matter, President Obama, who will reveal in detail changes he would like to see in January, informed the group he was “open” to much of what they had to offer.  We shall see how “open” since as NYT notes, “he has already rejected one that called for separate leaders for the N.S.A. and its Pentagon cousin, the United States Cyber Command.”

As noted above, there are 46 recommendations aimed at diminishing the secret and seemingly limitless powers the NSA has used since it was given broadly defined responsibilities following the Sept. 11, 2001 terrorist attacks.  They can be characterized in broad areas which include: making the agency obtain specific court approval for its activities, and more and better oversight from the Congress and specific presidential approval for spying on national leaders, especially allies.  

Plus, in an area that is sure to draw controversy, the panel recommended NSA cease and desist from its ability to insert “back doors” in American hardware or software, a secret way into them to manipulate computers, or to purchase previously unknown flaws in software that it can use to conduct cyberattacks.  To be honest, while on its face this seems a practical approach to calming the fears of our allies, part of me thinks that this would be an example of going to a gun fight armed only with a knife. Not being able to undermine the virtual or physical threats posed by rogue governments and terrorists defies logic, and it would be surprising if this really is removed as part of the U.S. intelligence community’s arsenal of clandestine operations in defense of national interests.  Indeed, it is hard to imagine that those with the intent to do the U.S. harm will believe this option has been taken off the table, assuming it became stated policy.

The report states that that its mission was to make recommendation that started tilting policy back in the favor of privacy without compromising legitimate intelligence The authors stated, “We have identified a series of reforms that are designed to safeguard the privacy and dignity of American citizens, and to promote public trust, while also allowing the intelligence community to do what must be done to respond to genuine threats…Free nations must protect themselves, and nations that protect themselves must remain free.”

For its part, the White House agreed that there was going to be significant intelligence community resistance to some of the report’s conclusions, who by their nature look at any diminution of their power as an invitation to bad actors to attack. It should also be noted, that intelligence agency leaders were not present when Mr. Obama met the report authors.

Not surprisingly civil-liberties groups liked the recommendations, and various members of Congress we cautious about them saying they were looking forward to how the reform process shakes out.

Money talks!

There is an old saying that, “Money Talks!”  And, from what a few of the tech executives said about their session, they had a lot to say and it was about money.  In what was evidently a polite but firm give and take, the business people made it very clear to the president and vice president that the Snowden revelations were hurting international business. They also were rather aggressive in saying that without significant reforms that can reestablish trust in American technology products and services the costs to the U.S. economy could be devastating. 

The White House press operations characterization of the meeting was that: “The president made clear his belief in an open, free, and innovative Internet and listened to the group’s concerns and recommendations, and made clear that we will consider their input as well as the input of other outside stakeholders as we finalize our review of signals intelligence programs.”

Where this daily double leaves us this holiday season is more about speculation and atmospherics than substance. If nothing it certainly put a damper on the notion that of “tis the season to be jolly.”  Trying to ascertain where we go from here is problematic at best.

One would suspect, however, that the NSA is going to get some kind of hair cut in 2014. Whether it is a trim around the edges, a Mohawk, mullet, or a baldy is going to keep the blogosphere humming until there is clarity.  This is going to be a process that is likely to take some very strange twists and turns before it becomes settled policy.  Plus, this being about national security issues, how much transparency is actually afforded the public is going to be a topic of debate as well.  Fasten your seat belts, if nothing else it is going to be a bumpy ride.