When made public on Sunday, the recommendations from the semi-independent panel created by President Obama to review the NSA's surveillance programs will apparently include real, substantive reforms — which doesn't mean they'll be embraced or implemented by Obama or the NSA.
In August, Obama announced the creation of the panel, comprised primarily of veterans of the security infrastructure. Both The New York Times and The Washington Post got an early look at the recommendations. (Leakers everywhere.) The changes that will be proposed appear to be the following:
- New constraints on the bulk collection of metadata on phone calls. This is a response to the ongoing, daily transmission of information about the calls you make — what phone numbers are involved, how long the call lasts — to the NSA. The NSA claims the right to do so under Section 215 of the Patriot Act, and the secret court that authorizes its spying (the Foreign Intelligence Surveillance Court or FISC) has OK'd it. This provision has increasingly come under fire, both for having walked up to (and maybe over) the line of the Fourth Amendment — but also because there's little evidence that it has been effective in stopping terror acts.
The proposed change appears to be that phone carriers would be required to maintain those records (which they already do) instead of regularly shipping them to the government.
- Changes to international surveillance. The ongoing revelations of NSA spying on foreign citizens and, to a greater extent, its surveillance of foreign leaders, was the biggest black eye for the Obama administration in the wake of the Snowden leaks. "We're not leaving it to Jim Clapper anymore," one official told the Times about foreign surveillance judgment calls, given "how infrequently the agency has been challenged to weigh the intelligence benefits of its foreign collection operations against the damage that could be done if the programs were exposed."
- Introducing opposing lawyers at FISC hearings. Right now, the FISC only hears from one set of lawyers when considering whether or not something should be allowed: the government's. The court insists that it applies pressure, but privacy advocates have called for including an opposing point of view. It appears that the panel will recommend doing so.
- Make the head of the NSA a civilian position. This proposal would move the military's internet warfare division, the Cyber Command, out of the NSA, allowing the spy agency to be run by a civilian.
- Separating the codemakers from codebreakers. One of the more alarming Snowden revelations was that the NSA was, on one hand, working to strengthen online security (to block hackers), but, on the other, working to undermine online encryption algorithms (to catch terrorists). One proposal would move the agency's encryption team away from the people working to undermine those tools.
If all of these were to be implemented, there's little question that the effect would be sweeping. But the NSA and its advocates — like Director of National Intelligence James Clapper — will offer fierce resistance, and it's not clear how the president himself will respond. The Post notes that the proposals, particularly the one about reforming phone records, will bolster ongoing congressional attempts to curtail the spying, but any such measures would also need to be signed into law by Obama.
At The New Yorker this week, Ryan Lizza outlined the history of the NSA's work, post-9/11, and the reasons why Obama has been slow to reel in its activity.
Faced with a long list of policies to roll back — torture, the wars in Afghanistan and Iraq, the use of the prison at Guantánamo Bay to hold suspected terrorists — reining in the N.S.A.’s surveillance programs might have seemed like a low priority. As core members of Al Qaeda were killed, the danger shifted to terrorists who were less organized and more difficult to detect, making the use of the N.S.A.’s powerful surveillance tools even more seductive.
Especially since Obama the attorney "viewed the compliance problems as a narrow issue of law; it was the sole responsibility of the fisa court, not the White House, to oversee the programs." "The N.S.A.’s assurances that the programs were necessary," Lizza writes, "seemed to have been taken at face value." The attempted Christmas Day 2009 bombing of a flight bound for Detroit — the infamous underwear bomber — only solidified the administration's reluctance to curtail anything that might prevent a potentially more successful attack.
The other thing Lizza makes clear is that, despite its genesis, this surveillance program is by now owned entirely by President Obama. As January 20, 2017 nears, and with it his last day in the White House, Obama will need to decide what his legacy on privacy will be. Will he be the president that fought to maintain surveillance tools that were excoriated even by a panel he himself assembled? Or will he be the president that set a new direction for how the government collects data on its citizens?