This morning, President Barack Obama, in a long-awaited speech, addressed the topic that won't (and shouldn't) go away: NSA surveillance. Many were expecting the President to announce a package of significant reforms, such as ending or heavily reining in the bulk metadata collection program, and adding a privacy advocate to the one-sided secret Foreign Intelligence Surveillance Court proceedings.
Instead, President Obama delivered a speech large on rhetoric and short on substance. After spending much of his speech reciting historical examples of intelligence programs that benefitted our country (all of which involved insurrection or spying on unfriendly foreign countries), and some that didn't (domestic surveillance of civil rights leaders), and denouncing the actions of NSA leaker Edward Snowden, he proceeded to make promises without plans, and reforms without impact.
The Proposed 'Reforms'
The biggest issue on everyone's mind was probably the bulk collection of metadata. The big change? Instead of spying up to three degrees of separation from a terrorist target, which was resulting in too much data to process anyway, metadata will be limited to "two hops."
The President noted that ideally, the government wouldn't be in the business of collecting and storing Americans' call records, but there is no plausible alternative at this point. Phone companies don't want the added hassle and expense and creating a private third-party system would be an expensive alternative that is essentially the same beast: a government-mandated domestic spying program.
Many wanted court orders before FBI national security letters were issued. While not going that far, the President did announce that the open-ended gag orders, which prevented recipients from discussing the requests, would have a set expiration date unless the government could show a "compelling national security purpose."
As for the "secret court," the President announced that on an annual basis, the administration will review FISC opinions that have broad privacy implications for purposes of declassification. As for "privacy advocates" in the court, the President will ask Congress to appoint a panel of advocates from "outside government" to provide an independent voice in "significant" cases.
Also, "unless there is a compelling reason," the United States will no longer tap the phones of the "leaders" of "friends and allies." Who are our "friends and allies?" And what about those who aren't the leaders, i.e. the grunts, the military, the other intelligence agencies?
He Forgot Something
For one, he forgot a plan. As Charlie Savage for The New York Times points out, the President spoke of reforming the bulk metadata program, but did so without a plan for taking the data out of the government's hands. He compares the promise to the 2009 promise to close Guantanamo, another promise without a plan (for dealing with dangerous detainees) that Congress quashed.
Silicon Valley won't be satisfied either. One of the most overlooked Snowden revelations was that the government was intentionally undermining encryption standards and placing backdoors in software for the NSA to exploit. The knowledge that the government has sabotaged the security of our private sectors' software had not only disturbed Americans who are concerned over domestic spying, but it has placed our tech companies at a competitive disadvantage, especially in foreign markets.
And notice one more small detail about the privacy advocates panel: the advocates will argue in "significant" cases. Who determines which cases are significant -- the supposedly independent government-appointed panel, the court, or the President's own administration?
President Obama forgot one more thing. Nowhere, in his lengthy speech, which cited "The Sons of Liberty" and General George S. Patton, did he mention the Fourth Amendment.
It's easy for us to become cynical and jaded from reading NSA revelations on a daily basis, but are we being too cynical? Tweet us your thoughts @FindLawLP.
- Live Coverage of Obama's N.S.A. Speech (The New York Times)
- Senators Ask Solicitor General To Clear Up Past Lies to SCOTUS (FindLaw's Technologist Blog)
- Same Case, Different Outcome: NSA Phone Metadata Sweeps Legal? (FindLaw's Technologist Blog)
- FindLaw's Legal Technology Center (FindLaw)