Further action needed for real surveillance reform
12:51pm | 17 January 2014 | by Katherine Maher, Jochai Ben-Avie
President’s reforms focus on bulk metadata collection, fail to address other surveillance programs
Washington, D.C. -- Today, U.S. President Barack Obama gave a speech laying out proposed reforms to the U.S. National Security Administration’s (NSA) mass surveillance programs. In his speech, the President called for reform to the current bulk telephony metadata programs conducted under Section 215, including the introduction of judicial review; guidance and limits on the use of the data of non-U.S. persons; and the creation of improved oversight at the Foreign Intelligence Surveillance Court.
These limitations on the NSA bulk collection programs are welcome, particularly the call for the end of the ongoing bulk telephony metadata collection programs. However, the President’s focus on bulk collection obscures the fact that the proposals fail to address the majority of NSA’s ongoing surveillance programs.
“Reform to government bulk collection of telephony metadata under Section 215 would be a welcome first step, with positive implications for people in the U.S. and abroad,” said Brett Solomon, Access Executive Director. “However, by focusing on bulk collection, the President avoided discussing much-needed reforms on issues such as the rights of non-U.S. persons, the tapping of the internet’s backbone, and the undermining of encryption standards.”
The U.S. president’s speech laid out procedural reforms that would strengthen protections for U.S. citizens and improve oversight. Most notably, the President called for “the end of the bulk metadata collection program as it currently exists” under Section 215 of the PATRIOT Act. Although this is a welcome announcement, the President’s suggestion that the U.S. government may transfer mandatory data retention obligations to the telcos is a significant step backward for user privacy.
The President also announced that, starting immediately, the NSA will require individual authorization from the Foreign Intelligence Surveillance Court (FISC) before querying the bulk metadata database. Further FISC-related reforms include a proposal for a Congressionally-led process to create a panel of independent experts for input on ‘novel and significant’ cases, as well as the creation of an annual review process of FISC documents for further declassification.
“While these procedural reforms to the bulk collection of metadata are welcome, they fall far short of ending the program as the President claimed.” said Solomon. “Real reform is needed and its needed now, starting with the passage of the USA FREEDOM Act.”
The President also failed to substantively address any of the surveillance programs and resulting abuses that have occurred under the FISA Amendments Act Section 702 or Executive Order 12333. Programs such as MUSCULAR, which allows for the tapping of fiber optic cables between Google and Yahoo! data centers, and Dishfire, which allows for the collection of hundreds of millions of SMS messages around the globe, collect the communications of U.S. and non-U.S. persons alike on a massive scale.
Although Obama’s speech acknowledged the importance of the rights of non-U.S. persons, it offered little promise for substantially redressing the United States’ egregious violations of their privacy. The President’s directive to the Attorney General and Director of National Intelligence (DNI) to review guidelines on the use of information on non-U.S. persons is a welcome step, but the DNI’s repeated defense of Section 702 programs gives little indication that he will recommend new, substantive recommendations.
“President Obama’s proposed reforms barely scratch the surface of the reform recommendations provided to him by his own Review Group, as well as numerous outside experts and consultative processes,” continued Solomon. “The proposed reforms fail to address the problem of these programs: mass electronic surveillance is a violation of the fundamental and universal right to privacy.”
The President also failed to mention any of the recommendations curtailing the NSA’s activities undermining encryption standards and the integrity of computer systems. The President’s own Review Group recommended the NSA “not in any way subvert, undermine, weaken, or make vulnerable generally available commercial software,” that the U.S. fully support encryption standards, and generally ensure that exploits such as Zero Day threats are quickly blocked. By remaining silent on these recommendations, Obama is leaving these backdoors open not just for the NSA, but for malicious actors around the world.
“The human right to privacy is universal. The rights of persons outside of the United States are as fundamental as the rights of U.S. citizens,” said Solomon. “However, the President’s defense of ongoing overseas intelligence collection programs ensures that the citizens of the world will continue to be subject to mass surveillance.”
Strategy and Engagement Director