Seeking a middle ground on surveillance, Obama pleases few.
- By Shane Harris
Shane Harris is a senior staff writer at Foreign Policy, covering intelligence and cyber security. He is the author of The Watchers: The Rise of America's Surveillance State, which chronicles the creation of a vast national security apparatus and the rise of surveillance in America. The Watchers won the New York Public Library’s Helen Bernstein Book Award for Excellence in Journalism, and the Economist named it one of the best books of 2010. Shane is the winner of the Gerald R. Ford Prize for Distinguished Reporting on National Defense. He has four times been named a finalist for the Livingston Awards for Young Journalists, which honor the best journalists in America under the age of 35. Prior to joining Foreign Policy, he was the senior writer for The Washingtonian and a staff correspondent at National Journal.
In an expansive speech on Friday that covered the history of American surveillance from the ride of Paul Revere to the leaks of Edward Snowden, President Barack Obama sought to assure critics and supporters of the National Security Agency that he’d heard their concerns and would make historic changes to way America spies. But at a fundamental level, Obama showed that he’s unwilling to dismantle or significantly curtail an apparatus of global surveillance that, he insisted, keeps Americans safe from terrorists, weapons proliferators, spies, and emerging threats in cyberspace.
Notably, the president’s speech on Friday was the most spirited defense of the NSA he has offered since the first classified documents exposing its operations appeared in the press last June. "Laboring in obscurity, often unable to discuss their work even with family and friends, they know that if another 9/11 or massive cyber-attack occurs, they will be asked, by Congress and the media, why they failed to connect the dots," Obama said. "What sustains those who work at NSA through all these pressures is the knowledge that their professionalism and dedication play a central role in the defense of our nation."
In proposing a way to move past the scandals of the past seven months, Obama tried to thread a tricky needle. With regards to the collection of Americans’ phone records, by far the most controversial of the programs Snowden revealed, Obama said the NSA itself will no longer be allowed to retain the so-called metadata. But the agency will still be allowed to access the records, which will be stored with a yet-to-be-determined organization. The agency will have to get permission from a court every time it wants to search the records — which, to be sure, was an outcome that intelligence officials wanted to avoid, and represents a defeat for the NSA. But that permission will come from the same court that has approved of the legality and constitutionality of the phone records program every six months for the past seven years.
In a similar vein, the president took the unprecedented step of extending the privacy protections afforded to Americans who have their personal information collected by the NSA to foreigners as well. From now on, U.S. intelligence agencies will have to follow the same safeguards when disseminating and storing foreigners’ communications and using their names in reports as they do with American citizens. But those rules, spelled out in a new presidential policy directive, don’t cover the collection and analysis of foreigners’ personal information. And it’s that practice that has so disturbed individuals, technology companies, and leaders around the world, who have criticized the NSA for casting a vast surveillance net that collects and analyze the data of millions of innocent people.
When it comes to monitoring foreign leaders, Obama reacted to outrage from U.S. allies that the NSA had monitored the private communications of heads of government around the world, including German chancellor Angela Merkel. From now on, they’ll be off limits. But their aides won’t be. In a briefing with reporters, a senior administration official said that the leaders of U.S. "friends and allies" would no longer be surveillance targets, arguably a fungible and subjective category.
The White House may have had no choice but to concede that spying on the leaders of Germany and other U.S. allies cannot continue. "2003 is generally seen as a lowpoint in German-American relations," Philipp Missfelder, the foreign policy spokesman for Merkel’s Christian Democrats, told Reuters this week, referring to strained relations between Germany and the United States over the invasion of Iraq. "But if you look at the current situation the loss of trust is not smaller than it was then. Indeed it’s probably bigger because this issue is preoccupying people longer and more intensively than the invasion of Iraq."
Reactions among privacy and civil liberties groups to the president’s proposals — which largely ignored the 43 recommendations of a group of advisers — were mixed. Some saw a small victory in the relocation of phone data to a third-party, even though most advocates had called on the president to suspend the program entirely. Others were pleased to see the United States extend some privacy protections to foreigners, but regretted that the president didn’t pare back the the scale of data collection.
Anthony Romero, the executive director of the American Civil Liberties Union, said Obama’s speech "outlined several developments which we welcome," including the appointment of legal counsel to appear before secret proceedings of the Foreign Intelligence Surveillance Court and argue against the government’s position on significant matters of law. "However, the president’s decision not to end bulk collection and retention of all Americans’ data remains highly troubling," Romero said. "The president outlined a process to study the issue further and appears open to alternatives. But the president should end — not mend — the government’s collection and retention of all law-abiding Americans’ data."
Sen. Richard Blumenthal, a Democrat from Connecticut and a leading backer of surveillance reforms, said Obama was "stronger on principle than prescription."
"The president’s reform blueprint, while bold and courageous, is a first step — leaving a lot of work to be done," he said in a statement.
Jan-Phillip Albrecht, a member of the European Parliament who has been pushing for stricter privacy rules on European personal data that’s given to the Americans, called Obama’s plan "not sufficient at all." Albrecht told the Guardian, "The collection of foreigners’ data will go on. There is almost nothing here for the Europeans. I see no further limitations in scope. There is nothing here that leads to a change of the situation."
For the White House, the speech was a high-profile attempt to tamp down a controversy that has been raging at home and abroad for months. As he did when addressing the Snowden leaks in a press conference last August, Obama sought to make Americans comfortable with surveillance in an age of rapid technological change that always seems to outpace law and regulations. "My administration has spent countless hours considering how to approach intelligence in this era of diffuse threats and technological revolution," Obama said.
The president said that the national debate over surveillance, which Snowden ignited, had also led him to examine how the United States distinguishes itself from governments that use surveillance as a tool of oppression.
"It may seem sometimes that America is being held to a different standard, and the readiness of some to assume the worst motives by our government can be frustrating. No one expects China to have an open debate about their surveillance programs, or Russia to take the privacy concerns of citizens into account," he said. "But let us remember that we are held to a different standard precisely because we have been at the forefront in defending personal privacy and human dignity."