Obama announces reforms of U.S. intelligence data collection practices

Obama said the transition from the current program would proceed in two steps. “Effective immediately, we will only pursue phone calls that are two steps removed from a number associated with a terrorist organization instead of three,” he said. “And I have directed the attorney general to work with the Foreign Intelligence Surveillance Court so that during this transition period, the database can be queried only after a judicial finding, or in a true emergency.”

Obama said he has instructed Holder to reform how national security letters — a form of administrative subpoena used to obtain business and other records — are used, so that the traditional gag order which accompanies them does not remain in place indefinitely. The New York Times notes, however, that he did not require judicial approval for issuance of the letters, as has been recommended by a White House review panel.

Spying on non-Americans
The president said he would also examine what kind of limits may be placed on the information collected from foreign targets about U.S. citizens. Obama said the new directive he issued Friday “will clearly prescribe what we do, and do not do [vis-à-vis non-Americans].” He said the United States would use signals intelligence only “for legitimate national security purposes, and not for the purpose of indiscriminately reviewing the e-mails or phone calls of ordinary people.” The United States, he added, will not “collect intelligence to suppress criticism or dissent” or to give U.S. companies a competitive advantage.

He said that unless there is a compelling national security purpose, “we will not monitor the communications of heads of state and government of our close friends and allies.” Friendly leaders “deserve to know that if I want to learn what they think about an issue, I will pick up the phone and call them, rather than turning to surveillance,” he said.

“The bottom line,” he said, “is that people around the world — regardless of their nationality — should know that the United States is not spying on ordinary people who don’t threaten our national security, and that we take their privacy concerns into account.”

The hypocrisy of certain governments
Obama offered a robust defense of the U.S. intelligence services, saying that there was no evidence they had abused their power, and that many of their methods were necessary to protect Americans. He made it clear that U.S. intelligence services must be able to operate in order to defend the United States in a dangerous world.

“We will not apologize simply because our services may be more effective,” Obama said. “But heads of state and government with whom we work closely, and on whose cooperation we depend, should feel confident that we are treating them as real partners.”

He stressed that “we cannot unilaterally disarm our intelligence agencies.” He pointedly criticized foreign intelligence services that “feign surprise” over disclosures of U.S. surveillance while “constantly probing our government and private sector networks and accelerating programs to listen to our conversations, intercept our e-mails or compromise our systems.”

The president noted that some countries that “have loudly criticized the NSA privately acknowledge that America has special responsibilities as the world’s only superpower . . . and that they themselves have relied on the information we obtain to protect their own people.”

Expressing frustration at those who “assume the worst motives by our government,” Obama said: “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.”

He said, however, that the United States is held to a higher standard “precisely because we have been at the forefront in defending personal privacy and human dignity.”

“Together, let us chart a way forward that secures the life of our nation, while preserving the liberties that make our nation worth fighting for,” Obama concluded.

Impact on American companies
The Times notes that Obama did not mention two of the recommendations of his review panel, recommendations which American technology companies say are of great concern to them. Two of the review panel’s forty-six recommendations called on the NSA “not in any way subvert, undermine, weaken or make vulnerable” commercial software, and move away from exploiting flaws in software to conduct cyberattacks or surveillance.

U.S technology companies argue that the NSA’s practices are costing them, and the United States, billions of dollars in foreign sales, as customers in Europe and Asia worry that American products are deliberately compromised by the NSA.

The deep divisions within the U.S. intelligence community about this issue, however, could not be reconciled in time for the speech, so the president had to side-step this issue, at least for now. Some in the intelligence community stress that without the ability to break encryption, to create “back doors” to enter computer systems abroad and to exploit flaws in software, the United States would be unilaterally tying its hands behind its back at a moment of intensifying cyberconflict.

American technology companies’ executives say, however, that this issue must be addressed, and their companies are already trying to develop “NSA resistant” products.

The five major changes announced by Obama
The Washington Post notes that the five major changes to the NSA’s data collection practices are

• U.S. intelligence agencies will no longer store Americans’ phone metadata. It is not yet clear where such information will be kept. Currently, telecoms such as AT&T and Verizon keep this information – it is automatically generated when these companies’ services are used – and law enforcement may gain access to such information with a court order. One of the forty-six recommendations of the presidential review commission was that private companies — phone carriers, Internet service providers — should retain their customer records in a format that the NSA can access on demand (see “Review panel calls for prohibiting NSA bulk collection of phone metadata,” HSNW, 19 December 2013).
• The president made it clear, though, that government agencies will be able to access call records when the need arises. The phone companies may be required to keep such data for a certain length of time, or a new entity may be created to store and monitor the metadata. Until a solution is found, access to such data by the intelligence community will be restricted.
• U.S. spying on leaders of allied nations will be restricted. The president implied the leaders of close allies of the United States would be off-limits – but: the definition of “close ally” is open to interpretation, and the aides of leaders of allied countries are not off-limits. It is understood that policymakers in allied countries who do not qualify as “leaders” are also not off-limits.
• A new panel will be created to serve as the ombudsman of the public in cases handled by FISA. Members of the panel will have security clearance, and will appear in court when an intelligence agency asks the court to approve a surveillance program. Until now, the court heard only from government agencies why a certain data collection program was needed, with no one in chambers to challenge the government’s presentation.
• New privacy protections for non-Americans will be developed, to assure the citizens of countries friendly to the United States that the U.S. intelligence community would collect information in their countries only when there is a compelling national security need.

The president’s reform proposal received cautious welcome from privacy advocates. “We are encouraged by the reforms announced by President Obama today,” said Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice. “He has opened the door to ratcheting back NSA surveillance of innocent Americans and non-citizens alike. But for every answer he gave, there are several new questions about how he plans to implement these changes. Ultimately, the full effect of these reforms remains to be seen.”

“Today the President recognized both the risks of unfettered surveillance programs, and the need to limit the U.S. government’s extraordinary electronic spying capabilities,” said Faiza Patel, co-director of the Liberty and National Security Program at the Brennan Center for Justice. “This is the first step in the long road of bringing our security agencies back in line with our constitutional values.”

Conservative analysts supportive of the NSA’s bulk data collection program also welcomed the presdient’s speech. “We’re not talking about trying to fix a massive breach of Americans’ privacy,” said Gary Schmitt, a resident scholar and national security expert at the American Enterprise Institute, told the Post. “When you begin with that, then you can make judgments about how important the current collection system is for national security. But you shouldn’t do it under this shadow of a Big Brother that doesn’t exist.”