Expressing concern about public confidence in the U.S. National Security Agency, President Obama announced today four proposals to reform U.S. surveillance practice. However, even if enacted, these proposals would still fail to actually protect the basic civil liberties of U.S. and non-U.S. persons.
Truly meaning reforms to U.S. surveillance programs would need to address the rampant violations of fundamental rights posed by these programs, including reform to PATRIOT Act Section 215, FISA Amendments Act (FAA) Section 702, and the introduction of a FISA Court warrant requirement for access to data and metadata that directly relate to specific threats to national security.
Instead, Obama’s proposed solutions included: (1) more transparency, (2) pursuit of PATRIOT 215 reform, (3) improvement in public confidence of the FISA Court, and (4) the formation of a panel of external privacy experts. For the reform of Section 215, the provision used to gather metadata of cell phone users, the President called on Congress to develop appropriate legislation. Obama also failed to mention the other policies used to spy on both U.S. and non-U.S. persons, including FISA Amendment Act Section 702, the provisions used to justify the PRISM program, among others.
Addressing proposed reforms to the FISA Court (FISC), Obama hinted at the creation of an independent advocate to argue on behalf of impacted users. Although Access generally supports the idea of an adversarial process before the court, we have reservations that a government-appointed advocate would be effective. These reforms also fail to address another critical deficiency: the need for the FISC to issue specific warrants when the government seeks to conduct surveillance. Current court practices allow for the authorization of bulk collection on the basis of a single court order, subverting the requirement that, for adequate due process, judges consider each case with specificity. Only with individual consideration would enable the conditions for an independent advocate to effectively carry out his or her mandate.
The other proposals put forward by the administration, the creation of a group of outside experts to review surveillance practices and greater transparency, are vague ideas that offer little substantive procedural protections, and do not address the ongoing flagrant violations of fundamental rights of users around the world.
The administration already has an existing independent expert body tasked with providing oversight — the Privacy and Civil Liberties Oversight Board, or PCLOB — is systemically under-resourced and functionally toothless. It is unclear how the proliferation of expert bodies would fundamentally resolve the issue of ongoing violations.
In a gesture at transparency, the Department of Justice today released a white paper detailing the administration’s legal theory on their interpretation of Section 215, justifying the NSA’s ongoing bulk collection of metadata. While useful for informing the public debate on this issue, the release of white papers should not quell public concerns over these programs.
Obama claims to sympathize with privacy concerns, but offers no substantive resolutions. His language addressing public confidence fails to recognize the issue with the NSA programs is not the public’s understanding of them, but the fact that they exist at all. His vague language of oversight and transparency and relentless focus on the leaks — and leaker — that disclosed the programs are attempts to obfuscate the true dangers of U.S. intelligence: their ongoing violation of fundamental human rights and erosion of basic democratic principles.
The problem with U.S. surveillance is not a lack of public confidence in the programs. The problem is the programs themselves. Transparency, oversight, legislative amendments, and a more adversarial FISA Court process are important elements of any surveillance reforms, but wholly inadequate to the task at hand.