Proving once again that he is neither the radical reformer the Right pretends that he is, and that the non-Right had hoped he would be, President Obama attempted to conservatively thread an impossible needle in his speech today [full transcript] calling for a number of reforms to the government’s current, sweeping collection of the private telephone data of Americans who are in no way related to terrorism investigations.
Once again, while ignoring many of the recommendations offered by his own special commission convened to make such recommendations for reform of NSA surveillance and other intelligence gather techniques, Obama is trying to split the baby and, in doing so, appears to be gaining the great admiration of…largely no one.
During a speech at the Dept. of Justice on Friday, he announced what he described as “a series of concrete and substantial reforms that my administration intends to adopt administratively or will seek to codify with Congress.” Those reforms are, in fact, a series of limited changes that, almost all honest brokers agree, would never have happened were it not for the historically-important leaks by former NSA contractor turned whistleblower Edward Snowden. The President side-stepped what should have been “thanks” offered to the now federally-charged fugitive forced into political asylum in Russia.
“Given the fact of an open investigation, I’m not going to dwell on Mr. Snowden’s actions or his motivations,” the President said, before taking a shot at him by referencing the importance of “the fidelity of those entrusted with our nation’s secrets” and “the sensational way in which these disclosures have come out.” Those disclosures, of course, led to this moment and these reforms, however meager and/or cosmetic they may turn out to be. “Regardless of how we got here though,” Obama continued quickly, in hopes of marginalizing the facts of Snowden’s contributions to the reality of the moment.
Since he was not given his proper due this afternoon by the President himself, it fell to the Huffington Post’s front page splash today to offer exactly that…
As to the substance of the speech, the one aspect of Obama’s announced reforms that is receiving the most attention concerns the bulk collection of American phone records. While he said the government will no longer keep those records, he said the collection itself will continue, though the information will be held by a yet-to-be-determined third party and only queried by government officials on an as-needed basis after receiving approval from a court authority.
We’ll reserve judgement on the particulars, at least until this non-governmental third-party is revealed, but it sounds a lot like that would be a corporate third-party. While that might (justifiably) outrage some, we’re talking about this (theoretically corporate) third-party holding on to data that is already collected by corporate third-parties in the first place (phone companies) before being passed on to the government, as per (theoretical) approval of the secret Foreign Intelligence Surveillance Court (FISC).
So, we won’t “collect” or “keep” the data anymore, says Obama, but we’ll retain access to it, as needed, while some unknown body hangs on to it. Baby split. Few happy.
“Having the telephone companies or other non-governmental entities responsible for holding this information might well make it far less private and secure than it is currently,” said Maine’s moderate Republican Sen. Susan Collins in a statement emailed to The BRAD BLOG late today. “Proposed #NSA reforms don’t go far enough,” tweeted California Democratic Rep. Loretta Sanchez, a member of the Congressional Progressive Caucus as well as of the Armed Services and Homeland Security committees. “Need hard limits on data collection type & storage time, & a privacy advocate throughout process,” she added.
War and Surveillance State hawks like NY’s Republican Rep. Pete King, however, was happy. “Pres Obama NSA speech better than expected. Most programs left intact,” he tweeted. While, curiously, two of the loudest opponents of the bulk collection of data under the Patriot and Foreign Intelligence Surveillance Acts, Sen. Ron Wyden (D-OR) and and Mark Udall (D-CO), were encouraged, if moderately so, by the President’s announced reforms.
“After years of work, it’s good to see 1st steps to reform taken today,” Wyden tweeted, “But make no mistake, many more need to come.” Udall echoed the measured optimism: “After my years of #bipartisan work & ongoing efforts, Pres. Obama took big steps forward today on #NSA reform.”
Republican Senator Rand Paul, a likely 2016 Presidential candidate who claims to be a civil libertarian, was more pointed in his critique. “If you like your privacy you can keep it,” he tweeted in a shot against Obama’s now-infamous promises about the Affordable Care Act (“Obamacare”), adding a graphic in a follow-up tweet which he described as “the cliff notes version” of Obama’s speech:
As to civil liberties organizations who have long been calling for reform to our massive surveillance state, the response was mixed there as well.
“We are encouraged by the reforms announced by President Obama today,” Elizabeth Goitein, the co-director of the Liberty and National Security Program at the Brennan Center for Justice said in an emailed statement. “He has opened the door to ratcheting back NSA surveillance of innocent Americans and non-citizens alike. But for every answer he gave, there are several new questions about how he plans to implement these changes. Ultimately, the full effect of these reforms remains to be seen.”
“The president’s speech outlined several developments which we welcome,” said the ACLU’s Executive Director Anthony Romero. “However, the president’s decision not to end bulk collection and retention of all Americans’ data remains highly troubling. … But the president should end – not mend – the government’s collection and retention of all law-abiding Americans’ data.” Romero went on to describe that collection and retention of data as “a textbook example of an ‘unreasonable search’ that violates the Constitution.”
In all, Spencer Ackerman and Dan Roberts of the UK’s Guardian summed up the President’s most noteworthy proposed reforms this way:
• Intelligence agencies must, with immediate effect, apply to the secret Fisa court for judicial approval to access Americans’ phone records.
• The secret Fisa court should be reformed to include a panel of independent advocates to provide a voice in “significant cases”.
• The NSA will not spy on the heads of state and governments of allies, and said some further protections would be given to foreign citizens whose communications were caught up in the agency’s dragnet.
• The US government had to be held to a “higher standard” than private corporations that store user data or foreign governments that undertake their own surveillance.
Obama said a balance had to be struck between competing demands. “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 that our ideals and our constitution require,” he said.
Journalist Glenn Greenwald, who has broken many of the news items related to the leaked documents from Snowden, which brought us to this moment, was, not surprisingly, largely skeptical about the announced reforms.
“To be sure, there were several proposals from Obama that are positive steps,” Glennwald wrote this afternoon after the President’s speech. “A public advocate in the Fisa court, a loosening of ‘gag orders’ for national security letters, removing metadata control from the NSA, stricter standards for accessing metadata, and narrower authorizations for spying on friendly foreign leaders (but not, of course, their populations) can all have some marginal benefits.”
“But even there,” he added, “Obama’s speech was so bereft of specifics — what will the new standards be? who will now control Americans’ metadata? — that they are more like slogans than serious proposals.”
Greenwald’s main critique, however, was aimed at what he described as “plainly cosmetic ‘reforms'”. He described Obama and the government’s overall response to the Snowden revelations as the predictable way in which the U.S. government has historically responded to similar disclosures of damaging revelations and crises…
He writes that similar “reforms” were enacted after the revelations by the 1970s Church Committee following Watergate; again after the 2005 revelations of the Bush Administration’s warrantless eavesdropping program when, in 2008, Congress merely passed legislation to make the illegal program a “legal” one (which has no effect on its Constitutionality, of course); and after the 2008 financial crisis, when, as Greenwald writes, Congress “enacted legislation that left the bankers almost entirely unscathed, and which made the ‘too-big-to-fail‘ problem that spawned the crises worse than ever.”
Obama’s “proposals will do little more than maintain rigidly in place the very bulk surveillance systems that have sparked such controversy and anger,” Greenwald argues, charging that such actions have been “Obama’s primary role in our political system.”
“He prettifies the ugly; he drapes the banner of change over systematic status quo perpetuation; he makes Americans feel better about policies they find repellent without the need to change any of them in meaningful ways. He’s not an agent of change but the soothing branding packaging for it.”
Lest you get the impression we’re quoting Greenwald uncritically here, we are not yet quite as cynical as he his. While the case he offers is very difficult to argue with, and he will likely be proven absolutely correct as he usually is, we’ll remain, as ever, both open to and skeptical of today’s announced reforms. On the other hand, if they turn out to be less “cosmetic” than Greenwald and others suggest, we will be pleasantly surprised. When it comes to the Obama Administration, however, we haven’t been pleasantly surprised for years.
Most importantly this speech and the justification for this spying is based off of 9/11, which upon further inspection, the official story doesn’t hold up under scrutiny. The commissioners themselves have even backed away from the veracity of their report. The day of infamy needs to be questioned more and more as both our continuing foreign policy and domestic policy rely so heavily upon it.
What the president wants/hopes to do is often, in the end, a glorious disappointment as the citizens’ interest seems to have become universally compromised away in the end product. However, this particular activity, national surveillance, says to the public that the law no longer applies, which is a dangerous precedence. In the end, would the public follow the law if the government no longer does regarding an essential definition of American rights?
Great post Brad. Thanks.
This is rare, not usual: I like Rand Paul’s response best. (the 4th Amendment obliterated).
OT Brad Good News…
http://www.post-gazette.com/news/state/2014/01/17/AP-Pennsylvania-judge-strikes-down-state-s-voter-ID-law/stories/201401170131
Now I gotta read the article.
Good article, and I agree with Dredd, #3 — Rand Paul has it right. Both the statement and the graphic. Short, sweet, and to the point. And also, I don’t agree with Paul on most issues. Sometimes, like this time, he is refreshing.
I’m glad to see some politicians getting on board with the ramifications of who does collect, store, and use our data, if not the government. How we control it (can we control it?) and what to do about it is not at all clear.
A change that is merely “cosmetic” and “superficial” does not rise to the level of a split-the-baby “reform.”
An unconstitutional, blanket collection of the metadata of every American cannot be made constitutional by turning the illegally seized data over to an unaccountable third party, presumably one of the private contractors reaping billions from this illegal project.
As had occurred when the President and his Attorney General used the sophistry of looking forward and not back to evade their constitutional obligation to prosecute their predecessors for war crimes, the President has deployed Orwellian doublespeak to evade the core constitutional issues raised by the NSA’s blanket collection of data.
This latest speech is but the latest example in which this skillful orator has utilized soaring rhetoric to mask policies that are simply unacceptable. See, e.g. We Must be Insane, which describes the instance in which this President, as part of his Nobel Peace Prize acceptance speech, followed up quotes from Dr. Martin Luther King, Jr. with words that were analogous to George Orwell’s “War is Peace.”
The man actually had the audacity to quote Dr. King while he sought to justify the escalation of that war of absurdity.
Ernie –
Allow me to play devil’s advocate here for a moment, since I don’t necessarily disagree with your assessment. You write:
Please note, that’s Greenwald’s assessment only, and his assessment of the big picture. Even he notes that there are a number of positive reforms (as I quoted him describing in the piece above.)
Here’s the devil’s advocate part. The Constitutional issue at question is the “search and seizure” of those records without due process. If the Government (as I believe has been claimed, though I can’t verify it) only keeps those records for X days (or months), and if it stops “seizing” those records at all (another party does so instead, as is already the case now, for example, Verizon keeping records of callers), and only “searches” those records when a court order allows them to do so, are they still committing unconstitutional search and seizure?
As to the records they have now (unconstitutionally, one might argue), and they get rid of them all either immediately or as they “time out” (after X days or months), would the government, at that point, be doing anything unconstitutional at all?
Discuss.
First of all: Oversight.
Who is to verify that the government does what it says (IF it says)?
How easy would it be for the government to illegally keep and use records without our knowing, if it says it does not? If discovered to be doing so, wouldn’t Obama (or whoever the president is at the time) use the Chris Christie defense (I didn’t know, I should have known, and heads will roll)?
2. Third party. Are the corporations involved who are holding onto their customer’s data doing anything illegal? What if they use the data or sell it or make it available unbeknownst to the public? Is it illegal? Could they be caught? what would be the downside for them? Slap on the wrist?
3. Essentially, what protections do we have, regardless of the laws and constitutionality of the data gathering and using processes? I suspect, essentially, none.
4. What to do? Go off the grid? Develop an alternative grid? Invent super anti-spy software and change it often enough that it can’t be easily hacked?
I would like to try my tin-foil hat theory on my cell phone. Would a tin-foil (aluminum foil, actually) envelope over a cell phone prevent any signals entering or leaving? I’m not sure how to test it — I guess wrap it in aluminum foil and then try to call it — if it doesn’t ring, perhaps signals are stopped. (I got my idea from the EZ pass device, which comes with an envelope that you can put it in if you don’t want it to work.) Trivial, perhaps, but if there is a small way to stop even a portion of incessant data collection, I will feel a very small victory. I’ll keep you posted 🙂
Hee hee, it worked! *does a small victory dance*
My experiment: I called my cell phone. It rang and indicated a missed call. I then wrapped it in aluminum foil (about three layers) and then tried to call it. It didn’t ring and didn’t indicate a missed call.
Tentative conclusion: Aluminum foil will stop signals from reaching a cell phone.
Will it stop the cell phone from sending signals? Don’t know, but I suspect it would.
Could we extrapolate to other devices? IOW, if you suspect your computer (or electronic voting machine, for example) could be sending/receiving signals even if unplugged from power or cable, would encasing the machine in an aluminum foil wrap preventing anything from getting through?
Could be something to check out.
http://www.wired.com/threatlevel/2012/03/ff_nsadatacenter/all/
http://www.propublica.org/article/nsa-data-collection-faq
if the phone company stores mega data in the course of normal business (even if it is to comply with law) and the nsa used an individual warrant…..I would not have a problem with it BUT the problem is we know it is not just mega data, the 2 articles I posted show at least in some cases they are capturing the content (conversations) also….which means they always have that capability…wether they look or not “capturing” is illegal (w/o a individual warrant)
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separate but related freaking david Gregory just said …there have been no abuses????
http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE97409R20130805
from that article….
Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.
The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.
“I have never heard of anything like this at all,” said Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011. Gertner and other legal experts said the program sounds more troubling than recent disclosures that the National Security Agency has been collecting domestic phone records. The NSA effort is geared toward stopping terrorists; the DEA program targets common criminals, primarily drug dealers.
David Gregory wouldn’t recognize abuse if he was sitting on his own head. (which I wish he would do, anyway)
CHICAGO — A federal judge in a Chicago terrorism case says the government doesn’t have to disclose whether it employed the kind of phone and Internet surveillance revealed in leaks by ex-government contractor Edward Snowden.
The pretrial ruling dealt only with Adel Daoud’s case. He denies seeking to detonate a bomb outside a Chicago bar in 2012.
Defense lawyers wanted the judge to order the government to say whether it used enhanced surveillance to flag Daoud for investigation. They argued that would have violated his rights.
But Judge Sharon Johnson Coleman said in a docket entry late Friday that Daoud’s attorneys “failed to provide any basis” for an order.
Prosecutors say they won’t use evidence derived directly from enhanced surveillance at trial, so aren’t obliged to disclose if they ever used it.
http://www.startribune.com/politics/national/241169061.html
There is some hardball state legislation that would stop the military NSA in its tracks:
(10th Amendment Center).
Let’s encourage every state to do so and the military NSA attack on Americans is over.
And none of us have to get arrested.
Following on my comment @13 …
The state of Washington has a bill that would make helping the military NSA to spy on Americans a crime.
That is a cause worth supporting.
The Privacy and Civil Rights Oversight Board has two members on it who are neoCons.
One was legal counsel for The U.S. Chamber of Commerce, a corrupt organization that once targeted Brad and his family.
The other was a legal counsel for national republican orgs.
They dissented from the majority opinion released very recently which says that the military NSA spying on Americans is illegal.
One of the three in the majority, which said the military NSA spying on Americans should be shut down, was a Federal Appeals Court Judge on the District of Columbia Circuit Court for 20 years, and its chief judge for five years.
Obama is in agreement with the neoCons on the board, not the sane folk.
What up wid dat? (SNL)
Even the RNC has seen the light on this issue, and now it is the dems who are dragging in the dark.
I realy do believe that Obama has a tenet to go through both terms as president without ever telling the truth about anything.
It may sound harsh but I also believe that Oboma is required to have more people die by his then did George bush in order to show his allegance to the new world order.
Isn’t it likely that the government can receive a signal from our cars computer and know where it is at all times?
I have been wondering that same thing about using tin foil as a shroud over my cars computer.
Also every card in my wallet is sandwitched between pieces of tin foil.
JJ @ 17:
Congrats on what is certainly amongst the most vapid and evidence-free comments posted to The BRAD BLOG in a very long time.
As to your comment @ 18:
Yes, you should definitely put tinfoil around your car’s computer. Sounds like a great idea. Also, you may want to consider putting some around your computer at home too. Around the monitor, keyboard, mouse, everything. Just make sure that neither you, nor anybody else can ever use it again. I think that would be best.