15 Ways to Make Sense of Calls for NSA Reform

President Obama has called for reforms to the National Security Agency's programs in order to strike a balance between privacy and security. However, contrasts abound between what the president has said and what his own review group and independent agencies propose.

NSA reform

Making Sense of the Calls for NSA Reform

After conducting multiple reviews of the National Security Agency's so-called signals intelligence -- monitoring phone calls and electronic communications for national security threats -- President Obama has concluded that reforms to the programs are in order to strike the right balance between security and the right to privacy. But how far should they go?

The modifications the president outlined are a study in contrast when viewed alongside the proposals from a special review group Obama convened, and are also markedly different from the recent conclusion of the Privacy and Civil Liberties Oversight Board, an independent agency chartered on the recommendation of the 9/11 Commission. After a flurry of recent discussion, we're taking stock of who said what, and what reforms might be forthcoming.

NSA reform

What the Review Group Recommended

The review panel called for the end of government storage of bulk telephone metadata -- information that includes telephone numbers and the date and time of the call, but not the conversation's content. The government's wholesale collection and storage of that information "creates potential risks to public trust, personal privacy and civil liberty," the group concluded. Rather than the government keeping the records, the review panel called for housing the information with private-sector providers or a separate third-party custodian.

The panel offered a guiding principle: "As a general rule and without senior policy review, the government should not be permitted to collect and store mass, undigested, non-public personal information about U.S. persons for the purpose of enabling future queries and data-mining for foreign intelligence purposes."

Obama, NSA reform
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Obama Agrees

The president made the call to end bulk metadata collection and storage a centerpiece of the reforms he outlined in a speech addressing the government's intelligence activities. Obama acknowledged the recommendations of the review group, though he cautioned that charging either phone providers or a central third-party with storage of the bulk metadata could each pose challenges.

Obama outlined a two-pronged approach to overhaul the bulk metadata program. Immediately, he is ordering that intelligence officials only pursue phone calls linked by two degrees to terrorist groups. The current setting is three degrees. Second, by the end of March, he is asking the intelligence community and Justice Department to study and present recommendations for how to shift the metadata storage away from direct government control.

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A 'Healthy Skepticism'

Obama said that he came to the White House with a "healthy skepticism" of the scope of the government's intelligence activities and commissioned a full review by his national security team and administration lawyers. But that review, which resulted in some additional oversight procedures, did nothing to indicate widespread excesses or overreach on the part of the national security community, Obama said.

"What I did not do is stop these programs wholesale -- not only because I felt that they made us more secure, but also because nothing in that initial review, and nothing that I have learned since, indicated that our intelligence community has sought to violate the law or is cavalier about the civil liberties of their fellow citizens," he said.

NSA reform
Larry Downing/Reuters

PCLOB Says Shut It Down

Not a week after Obama delivered his speech, the Privacy and Civil Liberties Oversight Board concluded, in a split decision, that the bulk collection of metadata is illegal and has been of "minimal value" in foiling terrorist plots. In the majority opinion, PCLOB said that it has not "seen any evidence of bad faith or misconduct on the part of any government officials or agents involved with the program," but nonetheless determined that the NSA's telephone metadata program lacks statutory authority and raises constitutional questions. And the benefits are marginal.

"[W]e have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation," the board concluded.

White House, NSA reform
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The White House Pushes Back

The White House flatly rejected the PCLOB's contention that the NSA's bulk phone-data collection, executed under the auspices of Section 215 of the PATRIOT Act, is unlawful.

"On the issue of 215, we simply disagree with the board's analysis on the legality of the program," White House Press Secretary Jay Carney said of the board's findings. Carney noted that Obama had met with the board and incorporated some of its recommendations into his own proposal, but stressed that the program, combined with other intelligence-gathering efforts, has disrupted multiple terrorist plots. Carney added: "It is one of a number of tools."

Carney noted that Obama's proposal to turn storage of the metadata over to a non-government entity "would be ending the program as it currently exists."

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But Wait ... Can You Trust the Phone Companies?

The same day that Obama delivered his speech suggesting that phone companies could serve as the gate keeper for the bulk metadata the NSA currently holds, a coalition of public-interest groups filed a petition with the Federal Communications Commission calling for new checks on the capability of those providers to sell or share their customers' phone records.

The petition, which cited the report that AT&T had been selling phone records to the CIA, asked the FCC to require phone companies to obtain customers' consent before selling private call records. Public Knowledge, one of the petitioners, claims that the privacy policies of the big four wireless carriers -- AT&T, Verizon, Sprint and T-Mobile -- all provide for some kind of cover for sharing private records.

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An Outside Advocate for the FISA Court

Many of those same groups have railed against the process by which intelligence authorities gain authorization to collect private communications records. The Foreign Intelligence Surveillance Court, which operates in secret, only hears the government's request -- no third-party is present to argue for limitations on data requests.

Obama, in keeping with his review group's recommendations, vowed to change that.

"To ensure that the court hears a broader range of privacy perspectives, I am also calling on Congress to authorize the establishment of a panel of advocates from outside government to provide an independent voice in significant cases before the Foreign Intelligence Surveillance Court," he said, without elaborating on how he would like to see that process take effect.

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Larry Downing/Reuters

Organizational Changes

Acknowledging that intelligence gathering in the Internet era raises distinctive international challenges, Obama is directing the State Department to designate an official to oversee diplomacy relating to technology and signals intelligence. Additionally, the White House will bring in an in-house privacy advocate to preside over the implementation of the new reforms. Presidential advisor John Podesta will lead a review of big data and privacy issues, consulting with other advisors, technology leaders, privacy experts and others.

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More Transparency for FBI National Security Letters

A major complaint from many communications providers has involved the so-called national security letters they receive from the FBI, demanding, in secret, specific information about users who are the subject of an investigation. Obama has called on the Attorney General to establish timetables for how long those requests must remain secret, and pledged more latitude for "communications providers to make public more information than ever before about the orders that they have received to provide data to the government."

In a bid to counter the perception that the government has a direct pipeline into their servers, a handful of leading tech companies, including Google and Microsoft, have sued in an effort to win more authority to make those types of disclosures.

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Backdoors and Encryption

Obama embraced his review group's recommendation to overhaul the phone metadata program, but was conspicuously silent on some of the Internet-related issues the panel addressed, some of which have sparked outrage in the tech sector. For instance, the president made no mention of the reported programs at the NSA to infiltrate the information conduits between the overseas data centers of Google and Yahoo. There was also no discussion of the agency's alleged efforts to crack most kinds of data encryption to enhance its information-gathering capabilities.

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Tech and Telecom Sectors Want More

Several tech companies and their trade groups praised Obama for acknowledging that reforms are needed, but many said they would like to see him go further.

Daniel Castro, a senior analyst at the Information Technology and Innovation Foundation, said "the president should clearly and unequivocally state that the policy of the U.S. government is to strengthen, not weaken, cybersecurity and renounce the practice of having intelligence agencies work to introduce backdoors and other vulnerabilities into commercial products.

Jot Carpenter, vice president of government affairs at the wireless trade group CTIA, argued that a balance between security and civil liberties can be achieved "without the imposition of data retention mandates that obligate carriers to keep customer information any longer than necessary for legitimate business purposes."

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The Public Remains Skeptical

As buzz was building ahead of the president's announcement calling for reforms of the NSA's intelligence-gathering activities, the Pew Research Center began polling Americans about their attitudes toward the programs. Half of respondents said that they hadn't heard anything at all about Obama's speech, and of those who had heard about it, just 21 percent said they expected the proposed reforms would increase protections on people's privacy. That same poll found that support for the NSA's programs has dwindled to 40 percent, down from 50 percent in July, shortly after the revelations began coming to light.

Capitol Hill, NSA reform
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View From the Hill

Reaction on Capitol Hill to the recent developments has been mixed. In the Senate, Judiciary Committee Chairman Patrick Leahy (D-Vt.), praised the PCLOB report for calling for an end to the bulk metadata apparatus and questioning "the legality and constitutionality of the program."

On the other hand, the chairman of the House Intelligence Committee, Mike Rogers (R-Mich.), one of the staunchest defenders of the NSA on the Hill, blasted the report.

"I am disappointed that three members of the board decided to step well beyond their policy and oversight role and conducted a legal review of a program that has been thoroughly reviewed," Rogers said. "Further, I don't believe the board should go outside its expertise to opine on the effectiveness of counterterrorism programs."

Snowden, NSA reform
Gary Cameron/Reuters

What About Snowden?

And what of Edward Snowden, the former government contractor whose leaks brought the NSA's activities to light? Citing an "open investigation," Obama said he would not "dwell on Mr. Snowden's actions or his motivations," though he maintained that the steady drumbeat of revelations has compromised national security.

"If any individual who objects to government policy can take it into their own hands to publicly disclose classified information, then we will not be able to keep our people safe, or conduct foreign policy," Obama said. "Moreover, the sensational way in which these disclosures have come out has often shed more heat than light, while revealing methods to our adversaries that could impact our operations in ways that we may not fully understand for years to come."

Copyright © 2014 IDG Communications, Inc.