January 2014

Obama’s restrictions on NSA surveillance rely on narrow definition of ‘spying’

[Commentary] President Barack Obama placed restrictions on access to domestic phone records collected by the National Security Agency, but the changes he announced will allow it to continue -- or expand -- the collection of personal data from billions of people around the world, Americans and foreign citizens alike. President Obama squares that circle with an unusually narrow definition of “spying.”

It does not include the ingestion of tens of trillions of records about the telephone calls, e-mails, locations and relationships of people for whom there is no suspicion of relevance to any threat. President Obama gave his plainest endorsement yet of “bulk collection,” a term he used more than once and authorized explicitly in Presidential Policy Directive 28. In a footnote, the directive defined the term to mean high-volume collection “without the use of discriminants.” That is perhaps the central feature of “the golden age of signals intelligence,” which the NSA celebrates in top-secret documents leaked by former contractor Edward Snowden.

President Obama for the first time put his own imprimatur on a collection philosophy that one of those documents summarized this way: “Order one of everything from the menu.” “It’s noteworthy that the president addressed only the bulk collection of call records, but not any of the other bulk collection programs revealed by the media,” said Alexander Abdo, an attorney with the ACLU’s national security project. “That is a glaring omission. The president needs to embrace structural reforms that will protect us from all forms of bulk collection and that will make future overreach less likely.”

Some Spy Changes Hampered by Complications

Several of the key surveillance reforms unveiled by President Barack Obama face complications that could muddy the proposals' lawfulness, slow their momentum in Congress and saddle the government with heavy costs and bureaucracy, legal experts warn.

Despite Obama's plans to shift the National Security Agency's mass storage of Americans' bulk phone records elsewhere, telephone companies do not want the responsibility. And the government could face privacy and structural hurdles in relying on any other entity to store the data. Constitutional analysts also question the legal underpinning of Obama's commitment to setting up an advisory panel of privacy experts to intervene in some proceedings of the secret Foreign Intelligence Surveillance Court, which oversees the NSA's data mining operations. President Obama has asked Congress to set up such a panel, but senior federal judges already oppose the move, citing practical and legal drawbacks.

Why Obama’s NSA Reforms Won’t Solve Silicon Valley’s Trust Problem

Technology companies will have more freedom to disclose the number and the nature of requests from the government for data related to national-security concerns. So we can expect more detailed transparency reports from the companies showing that they only provide a fraction of their information to the government. Additionally, the secret Foreign Intelligence Surveillance Court will add members with expertise in civil liberties and technology and will declassify more of its decisions. And President Barack Obama announced that for the first time, the US would grant privacy protections to overseas individuals similar to the ones that people in the US already enjoy. He specified that the government would access that information only when it felt that a target threatened national security.

The State Department will add a “senior officer to coordinate our diplomacy on issues related to technology and signals intelligence.” The tech companies undoubtedly hope that this as-yet-named official will launch a diplomatic effort to forestall the attempt of some nations to require that their citizens’ data be held locally. This so-called Balkanization could spoil the open nature of the Internet and make it hard if not impossible for businesses to operate globally. But don’t expect celebrations in Silicon Valley -- their blues are far from over. Generally, the Obama reforms tweak or constrain existing surveillance programs. But the overseas customers of US companies aren’t micro-analyzing the protections the NSA takes when it accesses customer data: They are incensed that the U.S. collects the data the first place.

Obama's NSA reform speech neglects Silicon Valley

[Commentary] President Barack Obama took a step in the right direction with his announcement of modest changes in the National Security Agency's surveillance tactics. But conspicuously absent from his address was any mention of the NSA's hacking of American technology companies.

For most of the country, this is a footnote to the security vs. privacy debate. But to Silicon Valley, it is economic life and death. European and Asian allies already talk about boycotting US technology products because NSA spying may make their products insecure. It's a legitimate concern. The potential cost to the tech industry has been estimated at nearly $200 billion by 2016. Whether or not President Obama's slight was intended, it further damages the relationship between the president and Silicon Valley and risks damage to the US economy. This is no time to blow off the industry that has led the way out of the recession. President Obama declared that he would forbid hacking foreign leaders' cell phones. That could help shore up foreign relations. But what about hacking his friends at home? Cyberattacks on major Silicon Valley firms to exploit weaknesses in their software are what we expect from, say, China -- not from our President.

President Obama throws tech companies under the bus

[Commentary] Within his surveillance speech, President Barack Obama effectively threw the US tech industry under the bus by reminding everyone companies in the private sector -- not the government -- collects its electronic information in the first place.

"Corporations of all shapes and sizes track what you buy, store and analyze our data, and use it for commercial purposes," the President said. "That's how those targeted ads pop up on your computer and your smartphone periodically." If a spate of data breaches and thousands of annoying pop-up ads weren't enough to discourage US consumers from sharing more data online, they now have an official warning from the top to remind them of its dangers.

What Obama's NSA reform means for tech

When President Barack Obama stepped down from the podium after describing his plans for reforming the United States' surveillance programs, only the most newsworthy and hot-button issues had been addressed. Reforms that the tech industry would most want -- such as prohibiting the undermining of encryption standards -- went unmentioned, and only a few specific reforms that would have an immediate and useful impact on the tech landscape were offered.

When the five-member Review Group on Intelligence and Communications Technologies issued its report in December last year, it made a number of recommendations involving the National Security Agency's use of specific technologies. Among them: not weakening encryption standards, not exploiting zero-day attacks, and having better review and oversight for how the NSA responds to advances in communications technology. All of these issues, especially the NSA's underhanded handling of encryption by way of the NIST (National Institute of Standards and Technology) -- and possibly companies like RSA as well -- have sparked ire in the tech world. But President Obama's speech touched on almost none of this, or if it did, it only hinted at it in the most oblique and indirect way. Encryption and the NIST itself weren't even mentioned. It's an echo of the sentiments felt by top technology company executives when they met with President Obama in December 2013 and made their own recommendations for NSA reform. President Obama promised at the time to "consider their input," but made no commitments.

A new day at the NSA

[Commentary] Individually, the concrete steps President Barack Obama announced toward reforming the National Security Agency's surveillance programs were modest. Taken together, though, they signal the end of an era of unfettered escalation in US intelligence-gathering.

The President didn't cancel any existing surveillance programs; indeed, he reaffirmed the government's argument that telephone metadata should still be collected -- though with new safeguards. To many civil liberties advocates, his cautious moves were disappointing. But while Obama's practical steps were small, the conceptual steps were large. Instead of accepting the doctrine that a global war against terrorists justifies almost any expansion of information-gathering, he said the entire U.S. intelligence enterprise should be subject to more public scrutiny and more stringent cost-benefit tests.

Intelligence chairmen ask Obama for NSA reform bill

The leaders of the House and Senate Intelligence committees told President Barack Obama that they supported his plans to reform surveillance at the National Security Agency (NSA) but wanted draft legislation to finalize the measures.

“We strongly agree with his comments in support and praise of the professionals in our intelligence community who do this work while upholding the civil liberties and privacy rights of all Americans,” Sen Dianne Feinstein (D-CA) and Rep Mike Rogers (R-MI) said in a joint statement. “We encourage the White House to send legislation with the president’s proposed changes to Congress so they can be fully debated.”

The President's NSA Illusions

[Commentary] President Obama’s speech was delivered not at the National Security Agency but at the Justice Department. The choice was revealing: The Justice Department's engagement with the intelligence community in this administration has been at arm's length and sometimes at sword's point -- notably in the refusal to recognize militant Islamism as the proper focus of intelligence-gathering, and in the reopening of previously closed investigations of Central Intelligence Agency operators for alleged transgressions in the treatment of terrorists. Many people whose job it is to decide how aggressively we will fight our enemies watched President Obama's speech from the Justice Department and got the message that when it comes to intelligence-gathering, the president would rather protect us from hypothetical abuses than from present dangers. That could be the most lasting effect of all.

[Mukasey served as US attorney general (2007-09)]

How candidate Obama would’ve replied to President Obama’s NSA speech

[Commentary] Obama from 2007, meet Obama from 2014. Back when he was campaigning for the White House, then-Sen Barack Obama took aim at President George W. Bush's surveillance record:

This administration also puts forward a false choice between the liberties we cherish and the security we provide. I will provide our intelligence and law enforcement agencies with the tools they need to track and take out the terrorists without undermining our constitution and our freedom. That means no more illegal wiretapping of American citizens. No more National Security Letters to spy on citizens who are not suspected of a crime. No more tracking citizens who do nothing more than protest a misguided war. No more ignoring the law when it is inconvenient. That is not who we are. That is not what is necessary to defeat the terrorists. The FISA court works. The separation of powers works. Our constitution works. We will again set an example for the world that the law is not subject to the whims of stubborn rulers and that justice is not arbitrary. This administration acts like violating civil liberties is the way to enhance our security. It is not. There are no shortcuts to protecting America.

Now, it is clear President Obama rethought some of his earlier positions and doubled down on others, such as the idea that the FISA court is an effective check on the NSA.

Benton

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