COLORADO SPRINGS, January 19, 2014 — In a Friday speech, President Obama said he was tightening guidelines for collecting phone call data as part of anti-terrorist efforts. He said he would initiate judicial oversight of the government’s collection of phone call records and restrict spying on foreign allies. According to the Voice of America, Senate Democratic Leader Harry Reid hailed the proposed changes, saying they would “go a long way” towards balancing the needs of national security and personal liberty.
But will they really?
The NSA already has judicial oversight in the form of the Foreign Intelligence Surveillance Court, known as the FISA Court. This secret court was established by the Foreign Intelligence Surveillance Act of 1978. The act was the initiative of Senate Democrats and signed by then-President Jimmy Carter. The idea was to protect Americans’ privacy by forbidding the wiretapping of any communications where either end of the communication was located in the United States.
Exceptions were to be approved on a case-by-case basis by the FISA court acting in secret to preserve the secrecy of the intelligence information. Over time and with the passage of the Patriot Act and other anti-terrorist acts, the protections for American citizens have withered away.
The NSA, as revealed by Edward Snowden, now collects and stores at least the metadata information on virtually every communication Americans use—and not just telephones.
How is this possible? Technically, in 1978 is was impossible to manage the totality of communications available. Messages were filtered at incoming collection points. But even as the communications revolution of the last two decades multiplied the available communication channels and volume of communications, ever-increasing computer system capabilities made it more feasible to collect and store data.
The Global War on Terror was the reason the government needed to actually collect and store more and more information for later retrieval and analysis. Personal liberty and privacy was lost.
While the White House promised Friday that it was ending the NSA’s most controversial surveillance program “as it currently exists,” what that clearly means is that the program will continue to exist.
Data will still be collected. “This is a capability that needs to be preserved,” a senior administration official said.Yet somehow this country won World War II and the Cold War without spying on every American.
As reported by the National Journal, the program is largely intact:
• The phone metadata still exists.
• It will be kept, at least in the short-term, by the government until Congress figures out what to do with it.
• It will be searched.
• Searches will be approved by a court with a record of being friendly to the government, one without a new privacy advocate.
• National Security Letters can still be issued by the FBI without a court order.
• Much of this activity will remain secret.
What will change? First, the president he called for the data to be housed somewhere other than within the government. Second, before the NSA can search the calling-record database, it should obtain judicial approval.
The one concrete step is to limit searches to two “hops” away from a subject’s phone number, not three. Think about how many people may be within two hops of you. If you’re not sure, check out your Facebook or LinkedIn profiles: It can easily number in the tens of thousands.
Intelligence officials argue that the program is critical for “connecting the dots” and combating terrorism but the president’s own review panel concluded that the program has not been responsible for preventing any terrorist attacks.
What it has been used for, according to high-ranking NSA official Bill Binney, is law enforcement.
“All of the information gained by the NSA through spying is then shared with federal, state and local agencies, and they are using that information to prosecute petty crimes such as drugs and taxes. The agencies are instructed to intentionally “launder” the information gained through spying, i.e. to pretend that they got the information in a more legitimate way … and to hide that from defense attorneys and judges.”
Binney, a 32-year veteran of the agency, was instrumental in the creation of the NSA’s surveillance program for digital information. He also served as the NSA’s senior technical director.
In his speech Friday, the president said “Given the unique power of the state, it is not enough for leaders to say: trust us, we won’t abuse the data we collect.”
That’s all he did say, though. The new controls are just window dressing meant to reassure a skeptical public.