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Obama to Speak on NSA Surveillance Controversy

The speech should provide some insight into the future of how the U.S. government keeps tabs on friends and foes
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NSA UNCOVERED: Leaked information about National Security Agency (NSA) spying programs put the Fort Meade, Md.-based organization in the spotlight and prompted President Obama to address public concerns.
Courtesy of the National Security Agency (NSA), via Wikimedia Commons

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Pres. Barack Obama will address the future of government snooping on personal phone records and other data in a speech Friday. Ever since the revelations made last year by former National Security Agency (NSA) contractor Edward Snowden, public unease and debate has swirled around the government's dominion over telecommunications and big tech companies as well as its spy agencies’ surreptitious tracking, collecting and storage of residents' information.

Obama’s remarks will be based, at least in part, on recommendations he solicited in August from a panel consisting of CIA veteran Michael Morrell, former national security official Richard Clarke, University of Chicago constitutional law specialist Geoffrey Stone, Harvard University law professor Cass Sunstein and Peter Swire, a privacy law scholar at the Georgia Institute of Technology. Last month, that panel issued a 304-page report that includes 46 suggestions covering a range of intelligence issues.

Perhaps the most significant recommendation is a call for the federal government to stop storing bulk telephone records and adopt a system in which a third party—a telephone company or other business—holds such metadata and allows the government to search it when necessary for national security. Other key suggestions endorse greater controls over data collection and retention. This approach includes raising the bar for approval when the government wants to investigate phone records as well as putting the onus on it to disclose more information about such investigations unless such a disclosure presents a national security threat. Another recommendation calls for the government to consider creating software that would allow intelligence agencies to do more targeted data searches rather than grab data in bulk.

The Snowden effect
Through a series of leaks to select media outlets since June, Snowden has shed light on several electronic surveillance programs previously unknown to the general public, including the PRISM program for gathering Internet-based communications such as e-mail and the Section 215 Telephony Metadata Program, so named after Section 215 of the PATRIOT Act. The NSA has defended its actions, to a degree, by saying it collects only metadata related to intercepted communications as opposed to the actual content of those messages.

Obama is most likely to accept some of the organizational reforms that the panel suggested, including the creation of a Civil Liberties and Privacy Protection Board to review the government’s foreign intelligence and counterterrorism investigations, says Chris Bronk, Rice University’s Baker Institute fellow in information technology policy and director of the institute's Program on Energy and Cybersecurity.

The panel also made several recommendations to limit the power of the Foreign Intelligence Surveillance Court (FISC), set up by the 1978 Foreign Intelligence Surveillance Act to review requests for electronic surveillance for foreign intelligence purposes inside the U.S. and, when appropriate, issue warrants. Obama now has to decide whether to accept, for example, the suggestion that Congress create a “public interest advocate” to represent the interests of privacy and civil liberties before the FISC. The panel also suggested restricting the court’s ability to compel telephone service providers and other entities to disclose private customer information to the government.

The call for a FISC public advocate is a bad idea, says James Lewis, senior fellow and director of the Center for Strategic & International Studies's Technology and Public Policy Program. “If you think FISC rubber-stamps government surveillance requests, then you probably think gumming things up [with a public advocate] is good,” he says. “But if you know what the court actually does, then you don’t want to get in the way of them making a decision that might be really crucial.”

In fact, Lewis thinks the FISC should be given more resources. “They don't have a big support staff, and they don’t have people who can advise them on [new surveillance] technology,” he says. “In no other process where we go to a court to get a warrant do we have a privacy advocate. This would be an unprecedented and probably silly departure.”

Missed opportunities
Despite the length and breadth of the panel’s work, there were some missed opportunities. They could have done more to address the growing rift between the federal government and Silicon Valley companies such as Google and Microsoft that could be miffed about spy agencies secretly tapping into their customer data. “Companies like Google immediately encrypted their interdata center communications as soon as they were aware of the vulnerability there to eavesdropping by the U.S government,” Bronk says. “Rebuilding trust with industry will likely require effort beyond that specified in the review.”

The report could also have made stronger recommendations regarding international diplomacy. Although privacy advocates in the U.S. have rallied against the government’s surveillance policies, the real damage was done in foreign countries, where leaders and citizens alike have become distrustful of the U.S., Lewis says. “The president giving additional privacy assurances and putting restraints on the NSA is a good start, but we really need a diplomatic strategy to rebuild the trust we’ve lost with some key partners,” he adds.

The recommendations, and Obama’s response to them, also raise several questions over any changes a chief executive can implement on his own versus those that will require changes to existing laws. “Almost anything that involves turning off programs, he can do on his own,” says Benjamin Wittes, a senior fellow and research director in public law at The Brookings Institution. The president doesn’t have the authority to make changes to data-collection programs such as Section 215 that are codified in a law. This would include requiring telecom companies to retain customer metadata that the NSA could later request via a court order.

That also means there’s no quick fix for the headaches caused by Snowden’s revelations. For starters there’s not broad agreement in Congress about the direction the surveillance work should go—the Senate Select Committee on Intelligence sees the need for only minor changes, whereas the Senate Judiciary Committee and much of the House have taken the position that the Section 215 program end entirely, Wittes says.

Regardless of the recommendations that Obama accepts or rejects, the timing of his speech is notable for at least two reasons: Apparently, the surveillance backlash has distracted the Obama administration to such an extent that the president is devoting a separate speech to the issue rather than including it in his January 28 State of the Union Address. Yet the White House has scheduled Obama to address these issues just before a holiday weekend, a time slot that government organizations and companies often use to release news they’d rather not see get a lot of attention.

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