Whatever the merits of President Obama’s proposed reforms to the National Security Agency, one thing is clear: the President’s core position means that he will never change the NSA’s bulk collection programs to privacy advocates’ liking. The advocates and the president simply disagree on the proper balance between government power and privacy — the heart of the debate over the NSA.
The most important issue Edward Snowden’s great docu-dump revealed is the use of Section 215 of the Patriot Act to collect metadata on every American’s phone records. The fact that the government can access this kind of data is what freaks people out: both in terms the prospect that it could be abused to illegally spy and even arrest Americans and the basic idea that the government being able to peek at our inner lives in this fashion violates a basic right to privacy.
Obama, in his speech, acknowledged that privacy advocates had legitimate concerns. But he vehemently argued that the NSA needs some kind of ability to immediately and comprehensively trace phone metadata inside the United States. “One of the 9/11 hijackers — Khalid al-Mihdhar — made a phone call from San Diego to a known al Qaeda safe-house in Yemen,” Obama argued. “NSA saw that call, but could not see that it was coming from an individual already in the United States.” (Obama didn’t say this would have prevented 9/11, a dubious claim at best.)
As a consequence, “the telephone metadata program under Section 215 was designed to map the communications of terrorists, so we can see who they may be in contact with as quickly as possible.” Obama concluded that “I believe it is important that the capability that this program is designed to meet is preserved.”
So Obama’s basic position is that, in order to head off terrorist attacks, the NSA needs the ability to access a trove of metadata about phone calls that take place inside American borders. How could that be accomplished without the government doing something basically similar to what the NSA is doing now?
That’s not at all clear. The President said he ordered “a transition that will end the Section 215 bulk metadata program as it currently exists, and establish a mechanism that preserves the capabilities we need without the government holding this bulk meta-data,” but admitted that both feasible alternatives had serious flaws.
The first, having phone companies hold the metadata and the government accesses it “as needed,” in some ways makes the problem worse. “Any third party maintaining a single, consolidated data-base,” Obama argued, “would be carrying out what is essentially a government function with more expense, more legal ambiguity, and a doubtful impact on public confidence that their privacy is being protected.” In other words: if you’re worrying about the government having access to your data, why is it better for both the government AND Verizon to be able to peek?
Another option is to get rid of bulk collection altogether, and rely on what Obama called “a combination of existing authorities, better information sharing, and recent technological advances.” This is certainly what privacy advocates would prefer, but Obama isn’t persuaded that it’d be able to retain the rapid mass surveillance capabilities he’d prefer. It’s hard to see how the NSA could immediately (Obama stressed the time-sensitivity of terrorism investigations) track metadata if it didn’t have access to some kind of large, preexisting database to search.
And that’s the core of the problem: Obama wants the NSA to be able to access Americans’ metadata with minimal restrictions, while privacy advocates don’t. The ACLU was lukewarm on the metadata section of the President’s speech for that reason, as was the Electronic Frontier Foundation (which gave the speech a 20 percent grade on stopping “mass surveillance of digital communications.”)
Obama went some ways towards limiting access to the data. He said that the NSA would “only pursue phone calls that are two steps removed from a number associated with a terrorist organization instead of three,” a serious reduction in scope. He also proposed steps to ensure that “the database can be queried only after a judicial finding, or in a true emergency.”
These are without question real reforms, but they cannot solve concerns that revolve around the mere existence of the NSA database. Until that’s changed, privacy advocates will remain unhappy. Kevin Bankston, Director of the New America Foundation’s Open Technology Institute, summarized their position clearly:
When it comes to bulk surveillance, the only acceptable path to reform is for companies to only store what they have always stored for their own business purposes, and for the government to only access the data of particular people and organizations based on targeted court orders. Anything less than that would ultimately be a failure of leadership in this critical moment.
Since that’s the core of the privacy advocates’ objections, the debate over the proper balance between government power and civil liberties remains unresolved. And it will remain this way so long as President Obama believes the NSA should be able to rapidly access large troves of metadata and his opponents believe that shouldn’t.