WASHINGTON - Few critics of the NSA will find much satisfaction in President Barack Obama’s speech last week or in the set of reforms he announced. They will say that the reforms aren’t sweeping enough, and it’s true, his steps aren’t exactly trailblazing.
But these reforms were always going to be about stiffening the oversight of key NSA programs - not greatly altering, much less scuttling, the programs themselves.
The presidential commission’s Dec. 12 report made this point explicitly. The panelists found no evidence that the National Security Agency had used its surveillance technologies in ways that violated the civil liberties of American citizens. Their big warning was that, in the future, some high-level officials - a Nixon-like president or a J. Edgar Hoover-like director - might "decide that this massive database of extraordinarily sensitive private information is there for the plucking."
President Obama endorsed this concern in his speech last week at the Justice Department, noting the inherent "potential for abuse" in massive digital data-gathering.
It was clear from his words - it’s been clear for some time - that metadata collection is not going away; it is too powerful an instrument for all manner of intelligence operations against foreign threats. If the NSA’s critics expected President Obama or his commission to propose ending the collection and analysis of metadata, they were naïve. The real question is how to control it.
By that standard, Obama’s reforms are fairly significant. He didn’t adopt all 46 of his commission’s recommendations, including a few that I would have liked to see him accept. But he did endorse some of the most far-reaching proposals and added at least one of his own.
He adopted what might be the report’s most drastic recommendation, which is to take the vast collection of metadata out of the NSA’s hands and store it either with the phone companies (where the data originated) or with some third party. Under Obama’s reform, if the NSA wants to gain access to this data, it will have to file a request with the Foreign Intelligence Surveillance Court. In other words, no NSA official will be able to rummage through the records on his or her own authority. This is a major step to curbing the "potential for abuse."
Obama did note that it’s unclear just how, and where, to transfer the data without creating different sets of potential abuses. So he tasked the attorney general and the director of national intelligence to figure out a way before March 28, the date when the law authorizing metadata collection comes up for renewal. The proposal to change who’s storing the metadata would have to be approved by Congress. So we’ll see how it works out.
Another eye-catching reform, which the commission did not propose but Obama or someone at the White House devised on his own (and does not require an act of Congress), is to cut the number of "hops" that the NSA can make, in fanning out its surveillance, from three to two. This is a bigger deal than it might seem. Metadata analysis tracks traffic patterns in phone calls. Let’s say the analysis reveals that someone - an American - has called the phone number of a known al-Qaida member. And let’s also say this person has phoned 100 people in the last five years. The NSA can start tracking not only the suspicious American’s calls but also the calls of those other 100 people. That’s the first hop. Let’s say that each of those 100 people also called 100 people. The NSA can track all of their calls, too. That’s the second hop, and it puts (100 times 100) 10,000 people on the agency’s screen. In the third hop, the NSA can trace the calls of those 10,000 people and the calls of all the people those 10,000 people called - or (10,000 times 100) - 1 million people.
In other words, Obama’s reform - which he said takes effect immediately - cuts the number of people who come under surveillance as the result of tracking a single suspicious person, if you use my example, from 1 million to 10,000.
In practical terms, this isn’t such a big deal, for now. During their investigation, the commissioners asked NSA officials how often they actually make a third hop in their traces. Their reply: almost never. Still, the reform places another limit on potential abuse in the future.
The presidential commission proposed a few reforms to the FISA court, which - in theory - is a key instrument of oversight, set up by the Foreign Intelligence Surveillance Act to review and approve (or, again in theory, block or modify) NSA requests for surveillance operations that tap into domestic phones or computers. Obama adopted one of the FISA court reforms - installing a public advocate on the court in certain cases so that someone at least makes a case for turning down a request on the grounds that it endangers civil liberties. Currently, no one is there to make the opposing case; it operates like a grand jury - which, as Sol Wachtler, a former New York State chief judge, once famously said, would "indict a ham sandwich."
However, Obama did not accept the proposal to change the composition of the court. Currently, the Supreme Court chief justice picks all of the FISA court judges, each of whom serves for seven years. The commission proposed letting each Supreme Court justice pick a judge on the FISA court. Obama took a pass.
Obama also waved away a very important - and unexpected - proposal by the commission to put limits on the FBI’s National Security Letters. Thousands of these letters have been sent to American citizens, mainly heads of Internet Service Providers and other communication companies, requiring them to turn over files - and prohibiting the recipients from ever telling anybody anything about it. The commission suggested requiring the FBI to go through the FISA court for permission to send a letter. Obama decided not to go that far. He did, however, say he would limit the duration of the secrecy pledge, though he didn’t say for how long and added that the expiration date, whatever it is, could be stretched if "the government demonstrates a real need for further secrecy."
Obama also released a new presidential policy directive, PPD-28, which explicitly prohibits the NSA from using its surveillance technologies to track down domestic political critics - a good thing to make clear, although Executive Order 12333, signed in 1981 by President Reagan, put broad restrictions on the NSA’s domestic activities (which certainly included forbidding the surveillance of domestic dissidents). Obama also stated the terms under which the NSA could, and could not, monitor foreign citizens. (That’s new.) And he outright banned tapping the phones of allied and friendly heads of state or government "with whom we work closely" - though there’s a superhighway’s width of leeway in the word "closely."
All in all, then, it’s a mixed bag. The reforms do erect some roadblocks, or pave some speed bumps, that would at least slow down the attempt by some future authoritarian president or rogue NSA director to use this treasure trove of metadata for oppressive purposes. That’s better, much better, than nothing.
Fred Kaplan is the author of "The Insurgents" and the Edward R. Murrow press fellow at the Council on Foreign Relations.
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