President Obama’s NSA copout

A new Pew poll reveals that President Obama’s highly touted speech on proposed reforms of the National Security Agency had “little impact on skeptical public”.  Half of those contacted said they had not heard of the speech; and of the 41 percent who had heard “a little bit,” the overwhelming view is that the president’s proposed changes will make little difference in privacy protection or on the ability of the government to fight terrorism.  Though such security speeches are never prominent on the public’s radar, an added reason for the yawn stems from the president’s muddled message and his refusal—after months of studying the issues—to take firms stands on key questions.

Before moving to the elements of this critique, it should be conceded that President Obama faced an extremely difficult task in formulating a response to the NSA revelations.   Elites in the US are deeply divided on the key challenges to reforming surveillance rules and practices of the security agencies: by and large, the security establishment is opposed to any real changes, while civil libertarians are demanding wholesale dismantling of central NSA programs.  In addition, there is the added voice of the US high-tech sector, which is facing steep challenges from global competitors who promise (fatuously) “safe houses” from NSA prying.  And then there are foreign leaders of close allies such as Germany and Mexico, and not-so-close allies such as Brazil, clamoring for the president to rein in his spies.

That said, it is also true that the White House has had over seven months to react to the drip, drip, drip of Snowden revelations.   Besides tasking the entire US security apparatus to review its practices and programs, the president established an outside commission (Review Group on Intelligence and Communications Technologies) of supposed experts to evaluate NSA programs, and he had prior access to the just released findings of an independent Privacy and Civil Liberties Oversight Board.  Beyond that, for months congressional proponents and opponents of NSA practices have bombarded the administration with demands.  And finally, belatedly, the president took counsel from CEOs of top US high-tech companies. Tough groups and tough issues to mediate, right?  But that’s what we pay presidents to do; and that’s what makes Obama equivocation both deficient and dismaying.

For this essay, three issues will be taken up as illustrative of the larger copout theme:

  1. The future of the so-called metadata program
  2. Extension of privacy rights to non-Americans
  3. Creation of an independent voice to appear before the Foreign Intelligence Surveillance Court (FISC).

On the first, the president announced in his speech that the metadata collection program plays a “vital role” in protecting the nation against terrorism.  Still, he decided to end the program “as it presently exists.”   First, starting immediately, the NSA will have to receive permission from the FISC each time it wants to penetrate the metadata base. Equally controversial, at some future date, the president wants to move the database entirely out of the government’s hands.   But in the biggest copout the president left final decisions on the move to his attorney general and top security officials—and ultimately most likely to the Congress.  From the get-go this presents huge problems: NSA Director General Keith Alexander is on record to the nation on "60 Minutes" opposing this shift as detrimental to national security; and second, the US telephone companies—one suggested collective repository for the data—are strongly opposed to the cost and liability of such a move.   In Congress, on this and other security/privacy issues, the chairmen of the Senate and House Intelligence Committees are pitted against a bipartisan opposition from the left and libertarian right: viz., the unlikely combination of Sens. Rand Paul (R-KY) and Bernie Sanders (D-VT).  It is entirely possible that the “temporary” executive fixes may extend to the 2015 absolute deadline when many of the NSA congressional authorizations expire.

The same puzzling uncertainty emerges with regard to the president’s commitment to extend to non-Americans the same privacy rights enjoyed by US citizens.  Thus, he promised that the NSA would no longer monitor communications of “heads of state and governments of our close friends and allies.”  Seemingly a vital new commitment, this statement leads to a policy morass.  First, the president carefully did not state (as privacy advocates and US allies fervently wanted) that he was extending the full force of the 1974 Privacy Act to all foreigners: this would have imposed much stricter due process and notification procedures on US security officials.  Thus, it is left to future determinations just which new rights will be accorded to non-Americans and under what conditions.  Further, the administration has refused to specify which countries will be honored as “close friends and allies,” no doubt setting off a behind-the-scenes scramble for inclusion—and raising the prospect of a nasty reaction from those not so knighted. Critics also point out that President Obama’s promise is unprecedented among nations—no other nation offers domestic privacy protections to the citizens of other nations.

The president also endorsed a proposal to create a public advocacy role in the FISC appeal process.  But once again, the details are fuzzy.  His commission had recommended a single officer to provide an independent voice before the court—something President Obama himself had seemed to advocate in earlier speeches.  But his specific proposal last week was for a panel that would only take part in “significant” cases that present “novel issues of law.”  Left unclear was who determines such circumstances and what authority such a body of lawyers would be given.  It is true that in the end Congress must legislate any changes in the FISC process, but once again the president, after clearly affirming a belief that a more normal adversary proceeding was in the public interest, did not advance a strong legal defense of his own position.

Finally, from the perspective of beleaguered US companies, what the president didn’t tackle at all is equally significant (without making a judgment here on security/competitiveness balance in each case).  He was completely silent on the issues of NSA hacking into encrypted systems of both US and foreign companies, and the placing of malware in both hardware and software.  These programs will continue unchecked, assuring that the “cyberwarfare” between the US government and leading high –tech firms, from Cisco to Google and Yahoo, will also continue unabated.   And though the president made vague reference to the need of greater transparency in NSA activities, the companies were given no clear indication as to how much information they will be allowed to make public regarding NSA specific demands on their data.  Further, while the emphasis has been on telephone records, the president was also silent on programs to penetrate internet and social media traffic—all still fair game.

The combination of silence and punting may well render the speech merely a footnote in the ongoing debate over the proper balance among security, privacy and competitiveness imperatives.

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