President Obama Curbs the NSA’s Digital Surveillance Programs

On Friday, following the former NSA contractor’s Edward Snowden revelations about the National Security Agency’s electronic surveillance program, President Barack Obama delivered a major address at the Justice Department in Washington D.C.   He pledged reforms, including ending the NSA’s bulk collection of telephone metadata (numbers called, length and time of calls) on American citizens and non-US citizens, limiting spying on foreign leaders on issues relating to national security, and requiring an order of the previously secret Foreign Intelligence Surveillance Act (FISA) Court to obtain meta data, while introducing a new panel of advocates to protect citizen’s privacy rights in FISA court proceedings.

[pullquote]Summary of President’s NSA Reforms:

• Increased oversight of NSA surveillance program
• Require FISA court order to access citizen phone record meta data
• Creation of advocacy board for FISA court
• Increased privacy for non-U.S. citizens as to electronic communications
• May hand over phone record database to Third Party provider or have phone companies retain its data
• Limited surveillance of world leaders [/pullquote]

The president first laid out the importance of secret surveillance and intelligence efforts through American history as balanced against a citizen’s civil liberties, particularly a right to privacy as to communications.  He acknowledged that the scope of NSA activity — including warrantless wiretaps — was stepped up after the September 11 bombings to monitor hostile powers and suspected terrorists and their funders in order to prevent further terrorist attacks and other cyber-attacks on our soil.  The President said these past efforts have prevented "multiple attacks and saved innocent lives."  He acknowledged, however, that there must be a balance between security and liberty, and pledged significant reforms to the NSA surveillance programs.

First, he approved a new presidential directive for the nation’s signals intelligence activities in the U.S. and abroad, which will include regular scrutiny by the senior national security team.

Second, the president ended the collection and review of telephone call "metadata" – meaning the phone numbers, time and length of calls, but not including the call content or the person making the call — made by ordinary Americans.  The revelation that this data was being collected has been one of the most controversial of the Snowden release of information about the secret surveillance program.  Immediately, he said the scope of inquires will be narrowed and the database may only be queried "after a judicial finding or in a true emergency."  This model would comport more with the current way these type of requests for phone records are handled, with the communications companies responding to court-issued subpoenas when law enforcement makes a valid case as to why it needs the data.

However, the president called for a new way of collecting the phone record metadata, because he said this data is important in some national security investigations and having the data in one database allows it to be urgently queried in the case of an terrorist incident or similar national security emergency.  It was not clear from the speech what the reforms or new system would be, but it may be the communications companies themselves holding its own data, or a new third party holding the phone records, and requiring them to hand it over to the government when necessary.

The president warned that these new approaches all pose difficult issues, including requiring new systems and procedures by communications providers, privacy issues should a third party hold the meta data, and cost impacts.

Third, there will be additional transparency granted to the communications companies to release more information about the orders they have received to provide data to the government.

Fourth, he proposed that should the NSA request meta data as to a suspected enemy of the US in the FISA courts, a non-government public advocate would be present at each request to make arguments to protect the subject’s privacy.  The President called on Congress to establish a panel of advocates from outside the government to provide "an independent voice" in significant cases before the FISA.  Up to now, the FISA court was a secret court which decides whether or not surveillance measures should be carried out by the NSA on particular individuals or group.

Finally, after the embarrassing revelation that the NSA tapped the phones of 35 world leaders including the personal cellphone of German Chancellor Angela Merkel, the president changed electronic surveillance as to foreign targets so that it is limited to those suspected to have information related to U.S. national security.  In the future, the president said that the U.S. may only wiretap abroad for a legitimate national security purpose, and may not collect it to suppress criticisms or dissent, to gain a competitive advantage for U.S. companies, or to disadvantage people on basis of their ethnicity, race, gender, sexual orientation, or religious beliefs.  The president wryly noted that other countries commonly engage in these practices against the U.S., but it did not stop them from complaining about the U.S. spying on them.

Finally, the president tasked a new senior official from the state department will be charged with coordinating diplomacy relating to technology and signal intelligence with other foreign countries.

Reaction Is Mixed to Speech

Reaction to the 45-minute presidential speech from privacy advocates, stakeholders and foreign leaders, was mixed.  The ACLU welcomed better transparency, improved checks and balances at the FISA court with the panel of advocates, and increased protections for non U.S. citizens abroad, but said "The President’s decision not to end bulk collection and retention of all Americans’ data remains highly troubling."

Policy representatives of Mozilla, the developer of Web browser Firefox, said: "We’d hoped for, and the Internet deserves, more.  Without a meaningful change of course, the Internet will continue on its path towards a world of balkanization and distrust, a grave departure from its origins of openness and opportunities."

The Electronic Frontier Foundation said "Today, Obama took several steps toward reforming NSA surveillance, but there’s a long way to go. . . "   EFF complained there was no protection for whistle blowers like Edward Snowdon.

Julian Assange, WikiLeaks founder, was very critical:  "It’s clear the President would not be speaking today without the actions of Edward Snowden and whistle-blowers before him. . . The President has been dragged, kicking and screaming to today’s address.  He’s been very reluctant to make any concrete reforms. . ."

Internet companies Google, Twitter, Microsoft, Facebook, LinkedIn and Yahoo, commented through their Global Government Surveillance Reform Coalition.  They said the commitments outlined by the president represented "positive progress on key issues including transparency from the government and in what companies will be allowed to disclose," but added that "crucial details remain to be addressed."

CTIA, the wireless association, representing wireless phone companies, said it welcomed the president’s efforts to start a dialogue to address these important issues and would work with the administration, congress and key stakeholders to balance national security issues with civil liberties of citizens. "CTIA continues to believe that this balance can be achieved without the imposition of data retention mandates that obligation carriers to keep customer information any longer than necessary for legitimate business purposes."

European commission spokeswoman Pia Hansen welcomed the extension of safeguards available to U.S. citizens regarding data collection for national security persons to non-US citizens and said it will now explore "the full implications of this commitment."