The NSA won’t get to decide when it pulls information from the phone records database. Until now, intelligence analysts have been able to “query” the database so long as they’ve determined a given phone number is subject to “reasonable, articulable suspicion.” Critics have said that gives the NSA too much power to snoop on people. So Obama is going to require that whenever an analyst wants to query the database, they’ll have to get permission from the secret Foreign Intelligence Surveillance Court first. The FISA court has not previously been in the position of approving individual requests.
When the NSA does query the database, they can’t go as far. Given a certain phone number, the NSA is currently allowed to look at any phone number that is connected to the first, any number that is connected to that number, and any number that is connected to that number. It’s what people in the industry call the “three hops” rule, for the three degrees of separation from the original number. Effective immediately, however, analysts will now be limited to making just two hops. It’ll limit the range of people who will potentially fall under the NSA’s gaze.
Noah Feldman is unimpressed:
On the surface, these proposals sound pretty substantial — but they aren’t. In a game of Six Degrees of Osama bin Laden, the move from three “hops” to two is minimal. If the suspected target phone numbers belong to people in the U.S., the odds are good that they have called some widely used number — the Comcast helpline, for example. Anyone else who has ever called that number would still be within bounds. Your friends’ friends are still two hops away, even if your friends’ friends’ friends’ are now not within the standard range. Ask yourself: Would the intelligence community have agreed to the three to two reduction if they thought it would substantially reduce their capacity to monitor terrorists?
Querying the bulk database only after a judicial finding sounds much better. Yet the president never said that he was talking about an individualized or specific judicial finding. The Foreign Intelligence Surveillance Court has already approved the most general requests imaginable. Those that already exist could well be included in the words “after a judicial finding” — which would mean no change at all during this “transition.” And what, pray tell, counts as a “true emergency” in the context of counterterrorism?
Jason Koebler focuses on how the reforms will affect foreign surveillance:
The United States doesn’t have any particular obligation to respect the privacy rights of foreign citizens. Obama had a point when he said “no one expects China to have an open debate about their surveillance programs, or Russia to take the privacy concerns of citizens into account.” But if Obama wants to establish good will abroad—and he almost certainly does—it’s not a good look to be spying on everyone, everywhere, for any reason. Friday, Obama said he’d extend at least some of the privileges designed to protect Americans’ privacy to foreigners.
The President said he’s directed the Department of National Intelligence and Attorney General Eric Holder to restrict the use of data that the NSA and other intelligence agencies collect and to limit the length of time US agencies are able to retain information they collect on foreigners. He also said he will, for the most part, stop spying on the personal communication of foreign heads of state, as long as they are allies.
Sort of. As always, the devil is in the details. … Obama said that he reserves the right to “monitor the communications of heads of state and government of our close friends and allies” if there “is a compelling national security purpose.”
Julian Sanchez points to what the president left unresolved:
Obama’s speech left open the possibility that bulk collection might continue with some third party — which would in effect be an arm of government — as a custodian. If records are left with phone carriers, on the other hand, it’s important to resist any new legal mandate that would require longer or more extensive retention of private data than ordinary business purposes require. It was disappointing, however, to see that many of the recommendations offered by Obama’s own Surveillance Review Group were either neglected or specifically rejected. While the unconstitutional permanent gag orders attached to National Security Letters will be time-limited, they will continue to be issued by FBI agents, not judges, for sensitive financial and communications records. Nor did the president address NSA’s myopic efforts to degrade the security of the Internet by compromising the encryption systems relied on by millions of innocent users. And it is also important to realize that changing one controversial program doesn’t alter the broader section 215 authority, which can still be used to collect other types of records in bulk—and for all we know, may already be used for that purpose.
Greenwald asserts that the whole point is to further entrench the existing system:
By design, those proposals will do little more than maintain rigidly in place the very bulk surveillance systems that have sparked such controversy and anger. To be sure, there were several proposals from Obama that are positive steps. A public advocate in the Fisa court, a loosening of “gag orders” for national security letters, removing metadata control from the NSA, stricter standards for accessing metadata, and narrower authorizations for spying on friendly foreign leaders (but not, of course, their populations) can all have some marginal benefits. But even there, Obama’s speech was so bereft of specifics – what will the new standards be? who will now control Americans’ metadata? – that they are more like slogans than serious proposals.
Ultimately, the radical essence of the NSA – a system of suspicion-less spying aimed at hundreds of millions of people in the US and around the world – will fully endure even if all of Obama’s proposals are adopted. That’s because Obama never hid the real purpose of this process. It is, he and his officials repeatedly acknowledged, “to restore public confidence” in the NSA. In other words, the goal isn’t to truly reform the agency; it is deceive people into believing it has been so that they no longer fear it or are angry about it.
Stewart Baker, on the other hand, worries that these reforms will undermine the NSA’s capabilities:
This turned out worse for intelligence than was expected, especially on 215 and the rights of foreigners. The President opened the door to “privatizing” the 215 program without any idea of how to do that, which simply will encourage legislative proposals that make the program unworkable while we’re waiting for the AG to decide how to implement the President’s notion. Meanwhile, he quite arbitrarily decides to eliminate the third hop search of phone networks, no matter what, and to go the the FISC for every search, barring emergencies. This builds in what could be weeks of delay before searches are conducted and adds to the FISC’s workload. All to solve a theoretic risk of abuse.
On foreign protections, it’s even worse. The principles on protecting dissent and avoiding ethnic and religious targeting are written broadly. If applied broadly they would prevent us from monitoring people who think Americans should be killed for religious or ethnic reasons. NSA has a deeply compliant and lawyer-ridden culture. If the directive can be interpreted to prohibit something, NSA employees will not do it, even if the interpretation is damaging to national security. That’s how they’ve behaved over the last thirty years and that culture won”t change. But the limits they observed before were on intelligence practices that touched Americans, where the agency was always hesitant and cautious. At the same time, the agency was encouraged to be aggressive, innovative, and relentless in pursuing foreign targets. Now the President is pushing all that hesitance and caution into the area where NSA has been most effective. It is likely to produce a generation of intelligence failures driven by a risk-averse National Security Agency.
Lastly, Linker asks us to put ourselves in the president’s shoes:
The disturbing fact is that in the months since Edward Snowden and his megaphone Glenn Greenwald first became civil libertarian folk heroes, there has been a been a precipitous rise in self-righteous silly talk in the U.S. and abroad about the ominous threats posed by the very act of government surveillance. Sure, it would be wonderful if we didn’t live in a world in which people plotted to kill as many Americans as possible. But we don’t live in that imaginary world. In the world we do live in, there are many such plots, as well as weapons with which those individuals could potentially kill many thousands of Americans.
How great are these threats? This is certainly a matter of dispute. But even though the efficacy of the NSA’s spying program is in question, it’s still eminently reasonable and morally defensible for the president to exploit this tool to its fullest extent within the law. Acting otherwise would be a monumental act of irresponsibility. This is something Obama himself (like many past presidents) has grudgingly come to understand.