Obama admitted to dragnet surveillance. We still don't know what will happen next.
- By David Cole<p> David Cole teaches constitutional law and national security at Georgetown University Law Center. </p>
After months of global criticism sparked by Edward Snowden’s leaks of dragnet NSA surveillance at home and abroad, President Barack Obama finally took the podium on Jan. 17 and acknowledged the concerns that those disclosures raised. His admission of the problem was critically important. But his proposed changes will not go nearly far enough to address the very real issues he himself identified.
Obama insisted that technological advances require Americans to rethink the limits on spying, saying that "the power of new technologies means that there are fewer and fewer technical constraints on what we can do. That places a special obligation on us to ask tough questions about what we should do." He rejected the argument, often made by NSA supporters, that because Americans share digital information via phone, web, or email with commercial businesses — or purchase anything with a credit card — they have no right to object to the government getting that information. (This is the very argument the Supreme Court adopted in the 1979 analog-era decision, Smith v. Maryland, in which the court ruled that citizens had no expectation of privacy, and therefore no Fourth Amendment protection, with respect to the phone numbers they dial, because that information is necessarily shared with the phone company.) In Obama’s words:
"Corporations of all shapes and sizes track what you buy, store and analyze your data, and use it for commercial purposes; that’s how those targeted ads pop up on your computer or smartphone. But all of us understand that the standards for government surveillance must be higher. Given the unique power of the state, it is not enough for leaders to say, ‘Trust us, we won’t abuse the data we collect.’ For history has too many examples when that trust has been breached."
The dynamics of surveillance have dramatically changed since 1979, and even since 9/11. The very technology that tracks terrorists across the world, Obama said, can also track ordinary law-abiding citizens. Digital technology now makes it possible to collect and analyze massive amounts of personal data, and the president admitted that "there is an inevitable bias not only within the intelligence community, but among all who are responsible for national security, to collect more information about the world, not less."
These are important concessions from the man who oversees the most technologically advanced spying apparatus in the world. The need for privacy-law reform in the digital age flows directly from these premises. If the United States doesn’t update privacy protections to account for the expanded power government agencies have to digitally track people, privacy will go the way of the eight-track player. So if President Obama’s speech marks the beginning of a process of reform, it is a long-awaited first step.
The danger, however, is that some people, especially those in the intelligence community, will treat it as the end of the discussion. And that would be fundamentally wrong, because the actual reforms Obama proposed do not go nearly far enough.
Obama has required the NSA to get specific approval from the Foreign Intelligence Surveillance Court (FISC) before searching through Americans’ phone records, and he has said that he will explore having the phone data held by some entity other than the NSA. He has called for a panel of independent advocates to appear before the FISC in at least some cases, introducing a necessary element of adversarial argument to what until now has been an entirely one-sided process. And he has called for somewhat expanded privacy protections for foreign nationals subject to NSA spying.
But here’s what he hasn’t done. On the domestic front, he has not ended the practice of collecting records on every American’s every phone call — without any suspicion of wrongdoing. He has rejected the recommendation of his own expert panel that the FBI be required to get court approval before it demands customer information from banks and communications-service providers under another expansive Patriot Act provision. He has not called for any narrowing of the statute that authorizes the NSA to intercept all communications of any person the agency suspects — with 51 percent probability — is a foreigner living abroad. And what about the NSA’s most lawless practices: its insertion of vulnerabilities into private companies’ encryption codes and its hacking of communications links between the Google and Yahoo data hubs based abroad? Not even mentioned.
In short, Obama has left dragnet surveillance — and worse — in place, while tinkering around the edges with how the information obtained through mass surveillance might be used. Seeking to assure domestic and international audiences alike, he asserted that "the bottom line" 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." But that is simply not true. With nothing more than a 51 percent probability that a person is a foreigner, the NSA is authorized to intercept that person’s phone calls, emails, and internet activity. That means it can spy on millions of "ordinary people who don’t threaten our national security."
Within the United States, the NSA still collects data on every Americans’ every phone call — which, again, by definition, includes mostly "ordinary people who don’t threaten our national security." And it is almost entirely those same ordinary people whose personal information was vacuumed up when the NSA broke into the overseas data centers. The president has assured the world that the NSA will only use the massive databases of personal information it collects for national security purposes, and not for illegitimate ends. But that’s what J. Edgar Hoover said about spying on communists. And we know how that turned out.
The challenge of preserving privacy in the digital age is immensely complicated, and no one could expect it to be solved in a single speech. The good news is that Obama has admitted there is a problem to be addressed. The bad news is that his reforms don’t go nearly far enough toward resolving the problem. It is up to the other branches of government — and more fundamentally, to American citizens — to insist that this be only the beginning, and not the end, of NSA reform.