President Barack Obama announced today a revamping of the National Security Agency's vast surveillance powers by ending the government's bulk retention of records associated with every phone call made to and from the United States.
Obama's plan, however, preserves the government's ability to access that treasure trove of telephone data that he said should be maintained by a yet-to-be determined, non-government entity instead of the NSA. The president offered few other substantive alterations to the electronic dragnet disclosed by whistleblower Edward Snowden.
"When you cut through the noise, what's really at stake is how we remain true to who we are in a world that is remaking itself at dizzying speeds," the president said.
The 44th president's 45-minute speech at the Justice Department was probably his most important following his 2009 inauguration, and comes 53 years exactly after President Dwight Eisenhower cautioned America that "we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex."
Obama was responding to a laundry list of proposed NSA reforms that emerged last month from an advisory board of academics and former intelligence officials the president assembled in the wake of the Snowden leaks. The leaks, disclosing a level of spying by a Democratic government George Orwell could not have envisioned, have sparked a backlash from the American public, the global business community, and the United States' allies and foes alike.
Judging by the reaction on Twitter, television and online, the president today did little to assuage privacy advocates who maintain that the surveillance state has grown too big and that government has ignored Eisenhower's Cold War warnings. "At the end of the day, bulk surveillance still in place for #NSA," tweeted Alex Abdo, a staff attorney with the American Civil Liberties Union.
But the president's announcement, bowing to the realpolitik of the current climate, outlined a middle-of-the-road approach blending concerns of the privacy and intelligence communities.
"We cannot prevent terrorist attacks or cyberthreats without some capability to penetrate digital communications, whether it’s to unravel a terrorist plot, to intercept malware that targets a stock exchange, to make sure air traffic control systems are not compromised or to ensure that hackers do not empty your bank accounts. We are expected to protect the American people; that requires us to have capabilities in this field," the president said.
Perhaps the most significant recommendation from the "President's Review Group on Intelligence and Communications Technologies" that Obama supported was one urging the president to stop holding a vast stockpile of phone metadata, recommending instead that data be maintained by the nation's carriers or a "third party." The panel recommended that NSA should only be able to query those 1 trillion records via an order from the secret Foreign Intelligence Surveillance Court. Obama embraced that recommendation but left an exception for the case of "a true emergency."
As it now stands, from at least 2006, the telcos have been funneling the phone metadata to the NSA on secret orders from the Foreign Intelligence Surveillance Court. Under the presidential panel's recommendation approved by Obama and effective immediately, the FISA Court, as it's known, must issue orders allowing government access to the vast database. The presidential panel recommended that the court would issue orders at the NSA's request to provide "information about particular individuals" if there are "reasonable grounds" to believe that the information sought is relevant to an investigation intended to protect "against international terrorism or clandestine intelligence activities."
"I believe we need a new approach," Obama said.
Until now, the government could query the database for any reason, but had settled on a so-called standard of "reasonable articulable suspicion." For the moment, the data will remain in the NSA's control as Obama tasked Attorney General Eric Holder and others to figure out how it can be stored by a neutral third party, and report back this spring.
Regardless of the president's announcements today, the metadata issue will soon be front and center before Congress. That's because the provision of the Patriot Act, Section 215, that is being cited to allow the metadata snooping expires June 1, 2015.
Obama's metadata plan dramatically alters the controversial bulk collection program because the NSA would be able to query the data only after meeting a higher standard of proof. That idea closely mirrors legislation proposed by House Judiciary Committee Chairman James Sensenbrenner (R- Wisconsin) and Senate Judiciary Chairman Patrick Leahy (D-Vermont).
At a Tuesday hearing before Leahy's committee, Geoffrey Stone, a University of Chicago Law School professor and one of five members of the president's panel that recommended the metadata overhaul, testified that the government should not have carte blanche access to the phone metadata that the administration has alleged to have helped foil dozens of terror plots across the globe.
While Stone conceded that the data could be abused in the hands of the carriers or a third party, the "primary danger," he said, would be the government tapping it to find "political dirt."
"That's a danger we want to avoid," he testified.
The metadata includes the phone numbers of both parties involved in all calls terminating or beginning in the United States, international mobile subscriber identity numbers, calling card numbers, and the time and duration of conversations. The government says it stores each record no longer than five years.
Obama also announced a plan to reduce the number of phone records the NSA could examine.
As it now stands, the NSA may review phone connections up to three "hops" from a suspicious seed number. Mathematically, that's a large amount of phone numbers. If a suspected terrorist calls 50 people, that's one hop. Then say that each of those 50 people calls 50 people, now 2,500 are in the second hop, and so on.
Obama limited database inquiries to two hops.
Before any data can be accessed, meanwhile, it must first be obtained from the nation's carriers.
The telephone companies forward it to the NSA based on orders from the FISA Court, which approves secret petitions from the NSA and other federal agencies. Set up in 1978 as a means to assist terrorism officials in secret, the court has 11 members chosen by the chief justice of the Supreme Court. Ten of the clandestine court's members are Republicans.
The court began authorizing the metadata program in 2006, although it commenced under the President George W. Bush administration in the aftermath of the 2001 terror attacks.
The court meets in secret at the E. Barrett Prettyman United States Courthouse in Washington, D.C. Usually, a single judge entertains motions from espionage officials, without any other parties present.
The president's panel recommended that there be some type of a public advocate present, one with a security clearance, "to represent the interests of privacy and civil liberties."
Obama announced he would work with Congress in a bid to make that happen despite the nation's top court official and former FISA Court's presiding judge saying it was unwarranted.
"Given the nature of FISA proceedings, the participation of an advocate would neither create a truly adversarial process nor constructively assist the Courts in assessing the facts, as the advocate would be unable to communicate with the target or conduct an independent investigation," John Bates, the director of the Administrative Office of the United States Courts, wrote (.pdf) the Senate Intelligence Committee on Monday.
Obama also supported his commission's recommendation that he spread the power to appoint the FISA judges among the Supreme Court justices. Again, he said he would work with Congress to make that happen.
Still, on a more substantive issue, Obama said he was "prepared to work with Congress" to hash out a recommendation by his commission to dramatically overhaul the standard by which a National Security Letter is issued. As it now stands, the Patriot Act grants administrative subpoena powers to espionage authorities to demand banks, doctors or most any institution to provide "tangible" records for the government to review — all based on the legal standard that an official claims the documents are relevant to an investigation. There is no judicial oversight. The law authorizing these subpoenas expires next year.
In 2011, the year with the latest available figures, the FBI issued 16,511 National Security Letters pertaining to 7,201 different persons, according to its own data.
FBI director James Comey and other law enforcement officials were against the presidential panel's recommendation that judges approve National Security Letters based on a new standard requiring the government to demonstrate reasonable grounds to believe that the particular information sought is relevant to an authorized investigation intended to protect "against international terrorism or clandestine intelligence activities."
The president also punted to Congress a panel recommendation to lift an automatic gag on institutions receiving the letters, like an ISP or bank, and to allow them to disclose their existence unless a judge declares the "disclosure would significantly threaten the national security" or would "interfere with an ongoing investigation."
Because of the gag orders that accompany National Security Letters, a California federal judge last year declared them unconstitutional, but stayed the decision pending the outcome of an ongoing appealbefore the San Francisco-based 9th U.S. Circuit Court of Appeals.
The president also capped on Snowden, and the media for its steady stream of stories based on documents from Snowden who is living in exile in Russia while facing espionage charges in the United States.
"Given the fact of an open investigation, I'm not going to dwell on Mr. Snowden's actions or his motivations. I will say that our nation’s defense depends in part on the fidelity of those entrusted with our nation’s secrets. If any individual who objects to government policy can take it into their own hands to publicly disclose classified information, then we will not be able to keep our people safe, or conduct foreign policy," he said. "Moreover, the sensational way in which these disclosures have come out has often shed more heat than light, while revealing methods to our adversaries that could impact our operations in ways that we might not fully understand for years to come."
He also released a "Presidential Policy Directive," one the president said mandates that the electronic eavesdropping will be conducted only "for legitimate national security purposes."
Meanwhile, it was not immediately clear how the president aligned with panel recommendations concerning encryption. The topic did not come up during his nationally televised address.
Two recommendations were to "fully support and not undermine efforts to create encryption standards" and to "not in any way subvert, undermine, weaken, or make vulnerable generally available commercial software."
Those recommendations were in response to classified documents Snowden obtained while an NSA contractor that showed the NSA engineered a backdoor into a global encryption standards number generator — a standard authored by the NSA.
Worse still, the Snowden documents also highlighted that the NSA has worked with industry partners to "covertly influence technology products." What's more, the documents also underlined that the NSA has vast crypto-cracking resources, a database of secretly held encryption keys used to decrypt private communications, and an ability to crack cryptography in certain VPN encryption chips.
Homepage image: Pete Souza/White House
