n Friday, President Obama outlined his proposed reforms for the National Security Agency and the nation’s spying practices, conceding that the government had indeed gone too far with its tech snooping.
“Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power,” he said. “It depends upon the law to constrain those in power.”
But before you write the obituary of the American surveillance state, let’s take a closer look at one telling reveal in the speech that strongly indicated that Obama’s changes will largely be cosmetic rather than substantive.
On the most controversial privacy issue — the NSA’s bulk collection of phone metadata — Obama said he was “ordering 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 metadata.” (The government has used Section 215 of the Patriot Act as a legal basis to vacuum up domestic metadata.)
The key here is the phrase “as it currently exists.” It seems Obama has no intention of dramatically curtailing the collection of metadata itself, as the practice’s most vocal critics have demanded. Rather, his changes mostly pertain to how the government can store and use the material it obtains.
Obama offered a two-part process to move away from the existing program. The first aspect of this plan involves a concrete change: The feds will only pursue phone calls up to two steps removed from those associated with terrorist organizations; they currently pursue calls up to three steps removed. Going forward, the government will be casting a narrower net.
The second part of the plan is more nebulous: Obama asked Attorney General Eric Holder and the intelligence community to come up with a way to “fill the gaps that the Section 215 program was designed to address without the government holding this metadata.”
The problem here is that there are as yet no good options for ending the practice of the government “holding” metadata. Obama’s NSA review panel recommended handing that responsibility to third parties, an approach the president shot down Friday.
In other words, though Obama said he wants the government to stop holding metadata, he has no idea how to accomplish that. As we’ve seen with the president’s unfulfilled vow to close the Guantanamo Bay detention facility, politically fraught challenges like these can go unresolved for years.
Then there’s the problem of how Obama framed the 215 program to begin with, saying it was “important that the capability that this program is designed to meet is preserved.” Specifically, he defended the program’s effectiveness by citing the case of 9/11 hijacker Khalid al-Mihdhar.
However, the effectiveness of the NSA’s metadata program in that case is highly suspect, as adetailed account from The New Yorker showed. And moreover, skeptical lawmakers, a federal judge, and independent reviews have all cast doubt on whether the program has actually stopped any terror plots; the White House’s own NSA review panel concluded that metadata “was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional section 215 orders.”
As for privacy concerns, Obama said the system had never been “intentionally abused.” Yet a judge on the Foreign Intelligence Surveillance Court, in a once-secret opinion obtained by The Guardian, concluded the agency had engaged in “systemic over-collection” pretty much since the program’s inception.
So: Bulk metadata collection will persist, albeit in a lightly curtailed form. And though Obama wants to change how that metadata is stored and used, he has no idea how to do so, and doesn’t like the one suggestion his own review panel gave him to that end. That’s not change, believable or otherwise.