Monday, January 20, 2014

Obama Leashes The NSA

On January 17th, 2014, the question of how the NSA should properly be governed entered formally into the  public discourse.  President Obama put the NSA on a leash.  

It's not a very short leash. It is a stretch leash, as  it lets the animal wander a bit, but it brings it back home in the end. It is a thin leash. It could break. It may need to be strengthened if the animal on the end grows larger or more independent.  

Obama spoke at the Department of Justice...

       First, he told his audience that their mission dates back to Paul Revere...

PRESIDENT OBAMA: "Thank you very much. Thank you. Thank you so much, please have a seat. At the dawn of our Republic, a small, secret surveillance committee, born out of the Sons of Liberty, was established in Boston. And the group’s members included Paul Revere. At night, they would patrol the streets, reporting back any signs that the British were preparing raids against America’s early patriots..."

       Then he spoke of the leash that intelligence agencies have always worn...
"Throughout this evolution, we benefited from both our Constitution and our traditions of limited government. U.S. intelligence agencies were anchored in a system of checks and balances, with oversight from elected leaders and protections for ordinary citizens. Meanwhile, totalitarian states like East Germany offered a cautionary tale of what could happen when vast unchecked surveillance turned citizens into informers and persecuted people for what they said in the privacy of their own homes..."

       He explained that abuse of the surveillance system for political gain has happened here before.

"In fact, even the United States proved not to be immune to the abuse of surveillance. In the 1960s government spied on civil rights leaders and critics of the Vietnam War. And probably in response to these revelations, additional laws were established in the 1970s to ensure that our intelligence capabilities could not be misused against our citizens."

       The struggle that keeps our services going has become a struggle against motivated individuals.

"Now, if the fall of the Soviet Union left America without a competing superpower, emerging threats from terrorist groups and the proliferation of weapons of mass destruction place new and, in some ways, more complicated demands on our intelligence agencies.

Moreover, these new threats raised new legal and new policy questions, for while few doubted the legitimacy of spying on hostile states, our framework of laws was not fully adapted to prevent terrorist attacks by individuals acting on their own or acting in small ideological -- ideologically driven groups on behalf of a foreign power."

       To deal with threats from motivated individuals, we needed to become able to spy on everyone.

"The horror of September 11th brought all these issues to the fore. Across the political spectrum, Americans recognized that we had to adapt to a world in which a bomb could be built in a basement and our electric grid could be shut down by operators an ocean away.

So we demanded that our intelligence community improve its capabilities and that law enforcement change practices to focus more on preventing attacks before they happen than prosecuting terrorists after an attack."

       Spying on everyone enables agencies to focus on those who are most likely to cause problems and to stop them just before they do this:

"It is hard to overstate the transformation America’s intelligence community had to go through after 9/11. Our agencies suddenly needed to do far more than the traditional mission of monitoring hostile powers and gathering information for policymakers.
Instead, they were now asked to identify and target plotters in some of the most remote parts of the world and to anticipate the actions of networks that, by their very nature, could not be easily penetrated by spies or informants."

       The NSA's view of all people is shared with all law enforcement:

"Today, new capabilities allow intelligence agencies to track who a terrorist is in contact with and follow the trail of his travel or his funding. New laws allow information to be collected and shared more quickly and effectively between federal agencies and state and local law enforcement.

       But Obama has problems with torture, warrant-less wiretaps, and new "authorities" that were put into law without debate:

"And yet, in our rush to respond to a very real and novel set of threats, the risk of government overreach, the possibility that we lose some of our core liberties in pursuit of security also became more pronounced. We saw in the immediate aftermath of 9/11 our government engage in enhanced interrogation techniques that contradicted our values. As a senator, I was critical of several practices, such as warrantless wiretaps. And all too often new authorities were instituted without adequate public debate."

       The problem persists:

"... some of the worst excesses that emerged after 9/11 were curbed by the time I took office. But a variety of factors have continued to complicate America’s efforts to both defend our nation and uphold our civil liberties.

First, the same technological advances that allow U.S. intelligence agencies to pinpoint an al-Qaida cell in Yemen or an email between two terrorists in the Sahel also mean that many routine communications around the world are within our reach. And at a time when more and more of our lives are digital, that prospect is disquieting for all of us.

Second, the combination of increased digital information and powerful supercomputers offers intelligence agencies the possibility of sifting through massive amounts of bulk data to identify patterns or pursue leads that may thwart impending threats. It’s a powerful tool. But the government collection and storage of such bulk data also creates a potential for abuse."

       As we get more and more powerful, we should watch what we do:

"But America’s capabilities are unique, and the power of new technologies means that there are fewer and fewer technical constraints on what we can do.

That places a special obligation on us to ask tough questions about what we should do."

       All this light that's being shined on intelligence agencies messes them up, even as they do their best to over-collect information of decreasing relevance. Surveillance technology is evolving faster than the laws that govern it. The danger of overreach becomes more acute:

"And finally, intelligence agencies cannot function without secrecy, which makes their work less subject to public debate. Yet there is an inevitable bias, not only within the intelligence community but among all of us who are responsible for national security, to collect more information about the world, not less. So in the absence of institutional requirements for regular debate and oversight that is public as well as private or classified, the danger of government overreach becomes more acute. And this is particularly true when surveillance technology and our reliance on digital information is evolving much faster than our laws."

       Our new capabilities are outstripping the laws that guide us:

"... And while I was confident in the integrity of those who lead our intelligence community, it was clear to me in observing our intelligence operations on a regular basis that changes in our technological capabilities were raising new questions about the privacy safeguards currently in place.

Moreover, after an extended review in the use of drones in the fight against terrorist networks, I believe a fresh examination of our surveillance programs was a necessary next step in our effort to get off the open-ended war footing that we’ve maintained since 9/11."

       An end to the war on the world.

       Then he mentioned his War College speech last spring about the NSA and the use of drones:

"And for these reasons, I indicated in a speech at the National Defense University last May that we needed a more robust public discussion about the balance between security and liberty. Of course, what I did not know at the time is that within weeks of my speech an avalanche of unauthorized disclosures would spark controversies at home and abroad that have continued to this day."

       The solution to the Snowden issue is to uphold the civil liberties and privacy protections our ideals and our Constitution require:

"...  the task before us now is greater than simply repairing the damage done to our operations or preventing more disclosures from taking place in the future.

Instead we have to make some important decisions about how to protect ourselves and sustain our leadership in the world while upholding the civil liberties and privacy protections our ideals and our Constitution require.

This effort will not be completed overnight, and given the pace of technological change, we shouldn’t expect this to be the last time America has this debate."

       There are going to be some changes:

"So before outlining specific changes that I’ve ordered, let me make a few broad observations that have emerged from this process."

       1) The need is real, abuse is possible, corporations do it too, we can't just say "trust us":

"First, everyone who has looked at these problems, including skeptics of existing programs, recognizes that we have real enemies and threats...

We cannot prevent terrorist attacks or cyberthreats without some capability to penetrate digital communications...

Moreover, we cannot unilaterally disarm our intelligence agencies...  We know that the intelligence services of other countries... are constantly probing our government and private sector networks and accelerating programs to listen to our conversations and intercept our emails and compromise our systems."

       2)  There is a potential for abuse.

"Second, just as our civil libertarians recognized the need for robust intelligence capabilities, those with responsibilities for our national security readily acknowledge the potential for abuse...

... they know, more than most of us, the vulnerabilities to privacy that exist in a world where transactions are recorded and email and text and messages are stored and even our movements can increasingly be tracked through the GPS on our phones."

       3) Corporations perform surveillance, too. They're part of the picture.

"Third...  Corporations of all shapes and sizes track what you buy, store and analyze our data and use it for commercial purposes. That’s how those targeted ads pop up on your computer and your smartphone periodically.

But all of us understand that the standards for government surveillance must be higher. Given the unique power of the state, it is not enough for leaders to say: Trust us....  Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power."

       The changes, from he whose motto was "Change you can believe in..." :

"... And today I can announce a series of concrete and substantial reforms that my administration intends to adopt administratively or will seek to codify with Congress.

       A new directive will strengthen oversight and will take into account our commitment to privacy and basic liberties:

"First, I have approved a new presidential directive for our signals intelligence activities both at home and abroad. This guidance will strengthen executive branch oversight of our intelligence activities. It will ensure that we take into account our security requirements, but also our alliances, our trade and investment relationships, including the concerns of American companies, and our commitment to privacy and basic liberties. And we will review decisions about intelligence priorities and sensitive targets on an annual basis so that our actions are regularly scrutinized by my senior national security team."

       We will make programs more visible (or more transparent, depending on how you read this).

 "Second, we will reform programs and procedures in place to provide greater transparency to our surveillance activities and fortify the safeguards that protect the privacy of U.S. persons. Since we began this review, including information being released today, we’ve declassified over 40 opinions and orders of the Foreign Intelligence Surveillance Court... "

       We will annually look to see if there are any secret FISA court decisions that we can declassify:

"And going forward, I’m directing the director of national intelligence, in consultation with the attorney general, to annually review for the purposes of declassification any future opinions of the court with broad privacy implications and to report to me and to Congress on these efforts."

       Privacy interests will be independently represented before the  FISA court:

"To ensure that the court hears a broader range of privacy perspectives, I’m 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."

       We are placing more restrictions of some sort or other on using information in criminal cases that comes from in American-foreign communications: 
"Third...  Specifically, I’m asking the attorney general and DNI to institute reforms that place additional restrictions on government’s ability to retain, search and use in criminal cases communications between Americans and foreign citizens incidentally collected under Section 702."

       National security letters, which secretly tell companies to provide information to the government, will be secret for a limited time, and will be made public after their need is gone.

"Fourth, in investigating threats, the FBI also relies on what’s called national security letters, which can require companies to provide specific and limited information to the government without disclosing the orders to the subject of the investigation."

       Bulk metadata which describes telephone calls - who called who, when, and for how long - comes from the providers. Henceforth it can stay on their computers. We can create a data warehouse out of diverse provider databases that looks to us like one single database. It's the same data - it just sits on the provider's computers rather than ours.  (And a deft move, that!)      

"This brings me to the program that has generated the most controversy these past few months, the bulk collection of telephone records under Section 215.

The review group turned up no indication that this database has been intentionally abused, and I believe it is important that the capability that this program is designed to meet is preserved.

Having said that, I believe critics are right to point out that without proper safeguards, this type of program could be used to yield more information about our private lives and open the door to more intrusive bulk collection programs in the future.

I believe we need a new approach. I am therefore 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."

       We are going to limit the fineness of the fishnet with which we gather America's data:

"Effective immediately, we will only pursue phone calls that are two steps removed from a number associated with a terrorist organization, instead of the current three..."

        Let Congress debate the shape we will take:

"I recognize that there are additional issues that require further debate.

I have concerns that we should not set a standard for terrorism investigations that is higher than those involved in investigating an ordinary crime.

But I agree that greater oversight ... may be appropriate. And I’m prepared to work with Congress on this issue.

 ... On all these issues, I’m open to working with Congress to ensure that we build a broad consensus for how to move forward. And I’m confident that we can shape an approach that meets our security needs while upholding the civil liberties of every American."

       On collection of intelligence from abroad:

"Let me now turn to ... intelligence collection abroad. Our capabilities help protect not only our nation but our friends and our allies as well.

But our efforts will only be effective if ordinary citizens in other countries have confidence that the United States respects their privacy too. And the leaders of our close friends and allies deserve to know that if I want to know what they think about an issue I’ll pick up the phone and call them rather than turning to surveillance.

..., the new presidential directive that I’ve issued today will clearly prescribe what we do and do not do when it comes to our overseas surveillance.

To begin with, the directive makes clear that the United States only uses signals intelligence for legitimate national security purposes and not for the purpose of indiscriminately reviewing the emails or phone calls of ordinary folks."

       Obama forgets how the national security apparatus was used to suppress the Occupy Movement:

"The United States does not collect intelligence to suppress criticism or dissent, nor do we collect intelligence to disadvantage people on the basis of their ethnicity or race or gender or sexual orientation or religious beliefs. We do not collect intelligence to provide a competitive advantage to U.S. companies or U.S. commercial sectors.

... people around the world, regardless of their nationality, should know that the United States is not spying on ordinary people who don’t threaten our national security and that we take their privacy concerns into account in our policies and procedures.
This applies to foreign leaders as well. Given the understandable attention that this issue has received, I’ve made clear to the intelligence community that unless there is a compelling national security purpose, we will not monitor the communications of heads of state and government of our close friends and allies."

       Obama is assigning staff to follow through:

"Finally, to make sure that we follow through on all these reforms... The State Department will designate a senior officer to coordinate diplomacy on issues related to technology and signals intelligence. We will appoint a senior official at the White House to implement the new privacy safeguards that I’ve announced today. I will devote the resources to centralize and improve the process we use to handle foreign requests for legal assistance, keeping our high standards for privacy while helping foreign partners fight crime and terrorism."

       More reforms will be needed:

"... So while the reforms that I’ve announced will point us in a new direction, I am mindful that more work will be needed in the future. On thing I’m certain of, this debate will make us stronger. And I also know that in this time of change, the United States of America will have to lead."

       Working together, Congress and the Executive can navigate the "privacy vs security" tight-rope:

"For more than two centuries, our Constitution has weathered every type of change because we’ve been willing to defend it and because we’ve been willing to question the actions that have been taken in its defense. Today is no different. I believe we can meet high expectations. Together, let us chart a way forward that secures the life of our nation while preserving the liberties that make our nation worth fighting for.

Thank you. God bless you. May God bless the United States of America.
Thank you. (Applause.) Thank you. Thank you"

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Of course, there were objections. The Conservatives felt Obama did not do enough to preserve our freedom by suppressing surveillance. Progressives also felt he could have done more. 

The NSA is uncertain how much information Snowden took and how soon it will be released. One can guess that they have been cleaning house lately, burying old messes, preparing to be all spick and span for a visit by the preacher. As a creature on a leash, it behooves the NSA to become a "good dog."

As more and more bad news gets leaked by the Guardian about the NSA, the leash may be a more and more comfortable place for it to be.

Obama followed his NSA speech by saying, a day or two later, that marijuana causes less damage to a person than beer. This completely changed the subject, and the NSA was no longer in the news.


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