The reforms aren’t exactly breathtaking, but Brian Fong at Wonkblog has a great primer on what they entail:
- The secret Foreign Intelligence Surveillance Court will have to sign off to NSA requests to ‘query’ the phone metadata database.
- When the NSA is authorized to query the database, they can only examine data for the express number and any number connected to the express number — ‘two hops,’ as opposed to the ‘three-hops’ approach that is currently the NSA standard.
- The actually database may be entrusted in the hands of a third-party, non-governmental watchdog, though the details are far from clear.
- The US government will stop spying on ‘dozens’ of foreign leaders.
- John Podesta, a longtime figure in Democratic administrations, will lead a comprehensive review of big data and privacy.
It’s fairly easy to poke holes in these reforms — to the extent that they are even fully carried out. As of June 2013, the FISC has rejected just 11 out of 33,900 surveillance requests since its creation in 1979. That’s a 99.97% success rate for the government, which hardly constitutes a meaningful check. Moreover, as this interactive feature from The Guardian shows, cutting back from the ‘three-hop’ approach to the ‘two-hop’ approach is meaningful, but with such a compliant judicial check, there’s nothing stopping an NSA employee from going back to the FISC for further authority. (By the way, when did US intelligence policy start taking its cues from a marginal 1990s Kevin Bacon film?)
It’s even more skeptical whether the NSA database will be transferred to a truly independent third party. Of course, the US government will certainly continue to spy on world leaders, even if it backs away from spying on the leaders of its top allies. Podesta, a former Clinton chief of staff, co-chair of the Obama transition team and chair of the Center for American Progress, a top progressive think tank in Washington DC, seems unlikely to rock the boat.
Moreover, the Obama administration has a relatively small well of goodwill on the issue. It’s been eight months since Obama, in another major speech on drone strikes, promised to limit drone strikes and to minimize casualties, pledging also greater transparency. But the drone strikes policy remains shrouded in mystery today, and it’s unclear where the ‘covert’ operations of the Central Intelligence Agency end and the ‘clandestine’ operations of the US military, especially the Joint Special Operations Command begin. Just before Christmas, the US government killed 15 civilians in an attack on what turned out to be a Yemeni wedding party, drawing massive rebuke both inside Yemen and beyond. There’s not a whole lot of evidence that the Obama administration has seriously reformed its drone strikes policies.
So while a fancy speech on NSA reform is great, there’s absolutely no evidence that the Obama administration really takes intelligence reform seriously. Though Obama’s speech was couched in the same constitutional-professor-in-chief tone as the drone speech, he blamed virtually everyone except his own administration for having to address the NSA mission creep that’s occurred on his watch:
- ‘At the dawn of our Republic, a small, secret surveillance committee, born out of the Sons of Liberty, was established in Boston. And the group’s members included Paul Revere.’ Obama provided a hefty prologue that tried to place the current NSA intelligence program in the context of US history, beginning with Paul Revere’s midnight ride. (Is the mantra of 2014 now, ‘Two hops by NSA, three hops by FISC’?) From the outset, Obama seems to deny that there’s anything fundamentally new or abusive about the current NSA spying scandal. As Glenn Greenwald writes in response to the speech in The Guardian, ‘the radical essence of the NSA – a system of suspicion-less spying aimed at hundreds of millions of people in the US and around the world – will fully endure even if all of Obama’s proposals are adopted.’
- ‘Totalitarian states like East Germany offered a cautionary tale of what could happen when vast unchecked surveillance turned citizens into informers and persecuted people for what they said in the privacy of their own homes.‘ I wonder if this was a tweak at German chancellor Angela Merkel, who grew up in East Germany and who has been outspoken in her opposition to the NSA overreach, which allegedly included tapping Merkel’s own mobile phone conversations. Merkel has compared the NSA’s surveillance to that of the Stasi, the East German intelligence and secret police.
- ‘I maintained a healthy skepticism toward our surveillance programs after I became president.‘ It really makes you wonder what a president without a ‘healthy skepticism’ might have allowed, which makes the need for major reforms even more apparent.
- ‘What I did not know at the time is that within weeks of my speech an avalanche of unauthorized disclosures would spark controversies at home and abroad that have continued to this day. Given the fact of an open investigation, I’m not going to dwell on Mr. Snowden’s actions or his motivations…the sensational way in which these disclosures have come out has often shed more heat than light.’ Regardless of whether you believe Edward Snowden, the former contractor who made the extent of the NSA’s surveillance activities public, is a traitor or a whistleblower or a hero, there’s no denying that Snowden’s disclosures immediately precipitated the widespread public debate on privacy and the security state, which directly led to Obama’s speech today. A little honesty would go a long way in establishing the Obama administration’s credibility on reform, especially when it seems that virtually the entire intelligence community is sharing with Buzzfeed (on background) their fantasies about killing Snowden.
- ‘Meanwhile, a number of countries, including some who have loudly criticized the NSA, privately acknowledge that America has special responsibilities as the world’s only superpower, that our intelligence capabilities are critical to meeting these responsibilities and that they themselves have relied on the information we obtained to protect their own people.‘ Are you listening, Angela? How about you, Dilma Rousseff? This might be the most petty line of Obama’s speech. It’s not going to do a whole lot to repair US-German relations, US-Brazilian relations or enhance trust in US diplomacy worldwide.
- ‘Our intelligence agencies will continue to gather information about the intentions of governments, as opposed to ordinary citizens, around the world in the same way that the intelligence services of every other nation does. We will not apologize simply because our services may be more effective.’ Poor MI5. That’s a little cocky for an intelligence regime that failed on the most critical question of the past decade (whether Iraqi leader Saddam Hussein had weapons of mass destruction) and failed to discover Osama bin Laden’s whereabouts for a decade.
- ‘No one expects China to have an open debate about their surveillance programs or Russia to take privacy concerns of citizens in other places into account. But let’s remember, we are held to a different standard precisely because we have been at the forefront of defending personal privacy and human dignity.‘ The United States is held to a higher standard, but Obama still tries to compare the United States to China and Russia in virtually the same breath. But what about the European Union? Canada? Australia? Certainly there are more meaningful comparisons and, on that scale, US civil liberties don’t look nearly as robust.
As Fung notes, the reforms that Obama outlined today generally speak to Section 215 of the US PATRIOT Act, which modified the Foreign Surveillance Intelligence Act to allow much wider investigation into personal information:
They don’t cover other programs the government carries out under Section 215, such as the reported scraping of financial information by the CIA. They don’t address the NSA’s counter-encryption activities or any geolocation information that the NSA may have or may be collecting. They also don’t address other programs like those conducted under Section 702 of the FISA Amendments Act, which is the authority under which PRISM operates.
It may well be that the Obama administration is more serious about surveillance reform than it was about limiting drone strikes. If so, today’s speech — and the substance of today’s reforms — mark a solid first step. But there’s nothing today that suggests it’s anything more significant than minimum cosmetic reforms that amount to damage control.