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Taming the NSA?

President Barack Obama offered it as a small olive to a public he had been lecturing for months. Ever since the disclosures by Edward Snowden of massive surveillance programs, the White House has had to play a form of political catch-up, its capacious tail dragging along in the process. Suggestions have been made about reforming aspects of the National Security Agency, most notably on its bulk collecting facility.

The theme in these deliberations has been uncomplicated. Activities on the part of the NSA and the Foreign Intelligence Service Court (FISC) have been regarded, in the main, as necessary and noble ventures. They are legal. They are needed. The Obama administration’s August white paper was a true whitewashing of the bulk surveillance program. Congress endorsed it. It had been reviewed by the FISC. According to former NSA director Michael Hayden, it was created and reviewed by all three branches of government (New Yorker, Jan 17). Those questioning it might well be suffering mild bouts of paranoia.

Infant steps towards accepting a measure of improved oversight came in the presidential commission’s December 12 report. It was already clear in that document that panel members found no evidence that the NSA had used its surveillance powers in a manner breaching the civil liberties of American subjects. Instead, the suggestion was that a rogue capture of such technology would, in the absence of controls, be dangerous. Beware the individual who decides “that this massive database of extraordinarily sensitive private information is there for the plucking.”

In the Friday speech, Obama followed the tenor of that report – accepting the premise that the system had to be tweaked to prevent a “rogue” capture. He admitted that, “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’.” As if placing a mirror before his administration, such trust had been abused in the past – “liberty cannot depend on the good intentions of those in power; it depends on the law to constrain those in power.” He admitted that the bulk collection program had not been “subject to vigorous public debate.”

But for all potential dangers, Obama suggested that the collection of metadata did not “involve the content of phone calls, or the names of people making calls. Instead, it provides a record of phone numbers and the times and lengths of calls – meta-data that can be queried if and when we have a reasonable suspicion that a particular number is linked to a terrorist organization.” Yes, surveillance is being conducted, but properly, as Obama would have it.

Interesting, then, that Obama would suggest reforms at all. But suggest he did. The database with phone records may be placed in the hands of a third party or with the relevant collecting phone companies. Should the NSA wish to access such data, it will have to file a request with the Foreign Intelligence Surveillance Court. In what might be regarded as smooth buck passing, Obama has given Congress greater responsibility in the matter: to make laws on the subject of who will be storing such data.

A panel of public advocates to represent consumers before the FISA court will be convened. As the court operates, there is no opposite case to be made in cases where civil liberties might be endangered by an order favouring taps on domestic phones and computers. Fred Kaplan in Salon (Jan 17) cites a former New York State chief judge Sol Wachtler’s striking remark on grand juries, which is what the current FISA court operates as: such bodies were bound to “indict a ham sandwich”.

Some of the implications are worth noting, because they arise as a direct response to the angst caused by the Snowden revelations. Charlie Blanchard, former Air Defence General Counsel, claims that, “We are going to treat a foreign person[sic] info the same way we treat an American’s information. That is a sea change from current practice.” According to Blanchard, this is a consequence of “globalization”, a reaction to the indignation caused to countries in Europe and Latin America.

One vital feature of the discussions on Obama’s speech have been overlooked – those in PPD-28, the policy instructions accompanying the announcement. This is vital, given that the President’s speech is hardly policy. The meat lies in the directive. For one thing, PPD-28 does not suggest a curtailing of the gathering of SIGINT in any tangible sense. Colin Clark, writing for Breaking Defense (Jan 18), suggests that this is “because the world is just too dangerous.”

The language in PPD-28 is certainly less inspiring than the speech, which is to be expected. But what it also shows is that change will be on a smaller scale, seeking alternative means of gathering intelligence where appropriate. “Signals intelligence activities shall be tailored as feasible. In determining to collect signals intelligence, the United States shall consider the availability of other information, including from diplomatic and public sources. Such appropriate and feasible alternatives to signals intelligence should be prioritized.”

PPD-28 also covers ground that should have been familiar from Executive Order 12333, signed by President Reagan in 1981 to restrain NSA activities in conducting surveillance on domestic dissidents. The new feature in PPD-28 is the restriction on monitoring foreign citizens, which might be termed the “Merkel” clause.

The directive deals with, though only in small part, with international criticism of the United States response (or non-response) at the World Conference on International Telecommunications and the International Communications Union (ITU) held at Dubai. The follow up meeting is to be held in Korea later this year. While US officials have tended to throw cold water on ideas from outside the American spectrum on internet governance, the times are making such attitudes not merely archaic but untenable.

To that end, Section 4 of PPD-28 does note that, “The Secretary of State shall identify a senior official within the Department of State to coordinate with the responsible departments and agencies the United States diplomatic and foreign policy efforts related to international information technology issues and to serve as a point of contact for foreign governments who wish to raise concerns regarding signals intelligence activities conducted by the United States.”

That said, Alex Fowler and Chris Riley, both policy experts at Mozilla, are not optimistic. The Internet, both as system and form of governance, will be allowed “on its path toward a world of balkanisation and distrust, a grave departure from its origins of openness and opportunity” (CNN, Jan 17). What Obama has done is cast about and suggest modest changes under sufferance, earning him a 3.5/12 score from the Electronic Frontier Foundation. Among the EFF comments, Obama’s reforms do nothing to protect national security whistleblowers, embrace “meaningful transparency reform”, oppose the FISA Improvements Act or stop the undermining of Internet security.

Congressional critics of the surveillance state, Senators Mark Udall (D-Colo.), Ron Wyden (D-Ore.) and Martin Heinrich (D-N.M.) considered the move by the president to end the government’s collection of phone records a “major milestone” but did add that, “The fight to protect liberty and increase security is far from over” (The Hill, Jan 17). Senator Rand Paul (R-Ky) was not convinced by reforms using third party storage of data, arguing that such bulk collection had to end altogether.

A sharp Kevin Gosztola of Firedoglake spotted a different Obama in the speech, one who was being patently deceptive about transparency. The government has hardly become more open to declassification since Snowden out of an interest in the practice but because the EFF’s legal victory. Obama attacked journalists for their “crude characterizations” about the surveillance program. He persisted in his view of the US being in a state of permanent war despite claiming previously this needed correction – surveillance gurus, by virtue of this, were necessary heroes. Paul Revere might have been regarded as the first NSA analyst.

Finally, Obama ignored what the FISA court itself found in 2009: that the very minimization procedures put in place by the government to protect records had been violated. The intelligence community, and other government operatives, have been less than scrupulous in abiding by their own rules. But the record of the Obama administration is one of polished concealment and disingenuous justifications. The status quo preacher, rather than the true changer, is what has emerged.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

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Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

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