On January 17, President Obama gave a speech announcing his proposed reforms to the NSA’s illegal mass-surveillance programs. The mainstream media surprisingly lauded his speech as a great step toward bringing these programs in line with the Constitution. Even generally conservative media outlets such as the Wall Street Journal ran headliness like “Obama Says NSA's Mass Collection of U.S. Phone Data Will End.” Nothing could be further from the truth. Obama clearly said mass surveillance would continue – “What I did not do is stop these programs wholesale...” He simply proposed “new privacy protections” that largely amounted to promises to enforce rules that the government has already promised it was enforcing – but was proven to be lying about. One of Obama's proposals would even make the NSA's mass surveillance program much worse.
As the Wall Street Journal observes later in its article, “[Obama] said the government would stop storing huge amounts of telephone data in NSA computers, but he hasn't determined where the databases will be located.” This is clearly not an “end” to the mass surveillance of innocent Americans. It is a continuation of the practice, but in a form that appears to present a more compelling loophole to the 4th Amendment. Obama claims he has instructed his administration to look for “options for a new approach that can match the capabilities and fill the gaps that the Section 215 program was designed to address, without the government holding this metadata itself.” Here is the loophole – the government wouldn’t be “seizing” your records in the flagrantly unconstitutional way it is now. It would require the private sector to conduct surveillance, then secure the records using warrants or National Security Letters. But setting aside the theory loophole-seeking legal contortionism, there is Obama’s theory that the data will be better off in the hands of the private sector. But is that true? Would it really be better for a private company to conduct mass-surveillance on behalf of the government? The government is at least theoretically accountable to the American people. A private company is not.
Obama’s speech strongly promoted the idea that he was announcing meaningful reforms. The reforms he announced were nothing more than old promises the government has already broken. “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.” The NSA promised in 2009 report that it could only seize phone records “with two degrees of separation (two hops) from the target”. In 2013, likely fearful that the Snowden leaks would reveal the truth, the NSA admitted it could actually seize records within three hops (which generally results in networks of millions of Americans). According to the NSA’s own admissions, it lied. Now Obama is asking it to make the same promise again.
Another reform Obama announced was that “the [surveillance] database can be queried only after a judicial finding or in the case of a true emergency.” Again, the NSA had already promised it was seeking approval from the secret FISA court system before conducting any searches. It was discovered in 2013 that the NSA has systematically violated this rule for years. Yet Obama is now making the same promise again.
A third reform proposal was in response to the international outrage over the NSA’s surveillance of foreign leaders like Angela Merkel of Germany and Dilma Rousseff of Brazil. Obama promised to stop spying on foreign leaders. He claimed, “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.” Of course, such surveillance was already in breach of international law and official U.S. policy. This was yet another promise Obama shouldn’t have to make, because it had already been made.
President Obama’s reform proposals are made even less credible by the fact that his administration’s top two intelligence officials have both lied under oath to Congress about these very programs (although Obama’s Justice Department has somehow neglected to pursue perjury charges). The Director of National Intelligence, James Clapper, even wrote a letter to Congress apologizing for his “clearly erroneous statements”. Is it reform to ask confessed liars to keep promises they have already broken?
For that matter, before he was elected President, Obama himself was an outspoken critic of the security machine George Bush built. He repeatedly vowed to dismantle it: “no more illegal wiretapping of American citizens, no more National Security Letters to spy on citizens who are not suspected of a crime… no more ignoring the law when it is inconvenient”. Given those broken promises, is he really a credible champion of reform at this point?
The only real change Obama proposed – moving surveillance data to the private sector – is not a reform but rather another step toward a security state with negligible accountability. It is an attempt to turn the conversation from a discussion of mass surveillance itself, to one of how it might be shaped. The conversation should be about dismantling this weapon that the government should never have built, not about building a firewall we hope will protect us against it.
Reform would involve firing James Clapper and Keith Alexander, and prosecuting them for perjury in front of Congress. It would involve making promises to the American people that hadn’t already been systematically broken. It would absolutely not involve spinning off surveillance duties to the private sector and further entrenching our maturing security state. Obama’s speech did not announce an end to the illegal mass surveillance of Americans. It was his pronouncement that he would continue to defend it, now with the subterfuge of false reform.