President Obama gave his big surveillance speech today, and it was pretty limited. Aside from some fairly vague promises about new oversight and greater transparency, here were his most important concrete proposals:
- The Director of National Intelligence will conduct an annual review of FISA court opinions with the aim of declassifying opinions that have “broad privacy concerns.”
- Obama will ask Congress to create a “panel of advocates” that will represent the public’s privacy interests in FISA cases.
- New restrictions will be placed on the use of “incidental” collection of surveillance of US persons in criminal cases.
- National Security Letters will remain secret, but secrecy won’t be indefinite unless the government demonstrates a “real need” to a judge. Companies receiving NSLs will be allowed to release broad reports about the number of requests they get.
- Bulk telephone records will continue to be collected. However, in the future the database can be queried only after getting FISA approval. The NSA will be allowed to perform only 2-hop chaining rather than the current 3-hop standard. A new group will investigate alternative approaches to the government itself holding the telephone database.
- Within some unspecified limits, there will be no more bugging of foreign leaders.
This is fairly weak tea. Nonetheless, I’m pretty certain that we wouldn’t have gotten even this much if it weren’t for Edward Snowden. This is why I support Snowden’s disclosures despite the fact that I’m not happy about every last thing he’s disclosed. Obama’s attempt to suggest that he would have done all this stuff even without Snowden’s disclosures strikes me as laughable.
You can read a full copy of the presidential directive accompanying Obama’s speech here.
UPDATE: I should be a little clearer about why I think this is weak tea. Of these items, only the first five concern domestic surveillance. #1 and #2 are pretty hazy, with the DNI apparently having full control over this new declassification regime and the public being represented in FISA cases only by a “panel of advocates,” a phrase that somehow strikes me as a bit weaselly. But we’ll see.
#3 is very important if the new restrictions are pretty tight. But that’s not clear yet.
#4 is nice, but doesn’t go very far. At a minimum, I’d like to see much tighter standards for issuing secret NSLs in the first place.
#5, if it’s implemented well, could be a genuine improvement. Records retention per se is something the government often mandates, and as long as the records are truly kept away from the intelligence community, accessible only via court order with an advocate aggressively arguing the public’s case, this is a useful reform.
Julian Sanchez tweets: “Initial verdict: A decent start, better than I expected, but we really need legislation to cement this, & the details will matter a lot.” That’s a little more optimistic than my initial verdict, but it’s probably fair. We really won’t be able to fully evaluate all this until we see what the detailed rules look like. Good intentions aren’t enough.
