Just as our army has, in President Obama’s famous debating words, moved beyond horses and bayonets, so too has our surveillance moved past using hot air balloons to count campfires. After demonstrating once again his wide-ranging knowledge of obsolete military technologies, Obama used his long-awaited speech today to frame broad new surveillance programs as a similar modernization for cyberwarfare.
He acknowledged that such modernization of spycraft had led to overreach, though he described surveillance and interrogations conducted under his predecessor’s term as “contradict[ing] our values” while the excesses under his own watch were ascribed to intelligence officers’ passion for defending their country. However, in order to rein in the expansion of spying, especially on American citizens, President Obama announced four major structural changes:
First, the president has approved a new directive meant to provide guidance to intelligence agencies, so they have clearer instructions on how to balance goals of protecting national security, obeying treaties we have signed, respect for civil liberties, and other concerns. The preferred way to make trade-offs was not detailed in the president’s speech, though he did disclose that the priorities set by the directive will be reviewed annually. Various new staff positions will be created in the executive branch to monitor compliance and recommend further revisions.
Second, President Obama listed several changes intended to increase transparency and set limits on any future overreach. He encouraged the declassification of Foreign Intelligence Surveillance Court opinions, when appropriate, so that citizens have some idea what the current interpretation of privacy law is. Additionally, he called on Congress to establish a panel of advocates from outside government to act as devil’s advocates in some cases before the FISA court. At present, the FISA court, which approves wiretaps and other surveillance requests, is not an adversarial system. Only representatives of the government present their case, the surveilled cannot hear or dispute their arguments.
Third, the president addressed concerns specific to Section 702 of the FISA Amendment Act, which allows intelligence agents to intercept massive volumes of communication for later data mining and review. Currently, when the federal government uses a national security letter to force a private company to turn over troves of user data, the company can’t reveal to their users that their security has been compromised. President Obama would tweak national security letters so the companies are not silenced indefinitely, and the secrecy would have an expiration date. Unless, he added, it was prudent to renew the gag order.
Finally, President Obama announced an overhaul of the massive database of phone records and metadata. Effective immediately, he is slightly tightening the criteria for inclusion in the database. Previously, the government trawled for anyone up to three steps removed from someone specifically suspected of terrorist ties (that’s friend of a friend of a friend of someone the government actually has cause to suspect). Now, new entries to the database must be within two social ties to a suspect. Both cutoffs expose a massive number of people surveillance, as a hop might be a single phone call, shared membership in an organization, or a LinkedIn connection. Ars Technica estimates that Americans average about 1000 one-hop connections each, and thus everyone in the United States is about two hops away from each other.
Additionally, the President would like to shift the entire database out of government hands. So, instead of the NSA or CIA having immediate access to the telephone metadata, they would need to petition FISA and then have their queries sent to a third party contractor, who would run the numbers and give them their answer. However, President Obama seemed pessimistic about the viability of this proposal, simply turning it over to a committee to consider, and remarking that it was not only unwieldy and slow, but might create new opportunities for abuse.
Throughout the speech, the president emphasized that no part of the current program was illegal, but that he was still glad to have the opportunity to explain and adjust it in accordance with citizens’ concerns. However, he pointedly rebuked leaker Edward Snowden for revealing details of these programs illegally and imprudently.
Absent Snowden’s leaks, though, it seems very unlikely Obama’s speech or the minor reforms he detailed would have taken place today.