The big one: President Obama’s speech on the NSA
So this Friday saw it then. The one we have all been waiting for. The one that has been both anticipated and dreaded by civil libertarians and the security services alike (albeit for different reasons): President Obama’s speech (full text here), announcing his plans for reforms of the NSA’s surveillance capabilities.
A spoiler: I was neither very impressed, nor very surprised.
What Mr Obama outlined on Friday has been variously hailed as “significant change” and an “overhaul” of the NSA’s surveillance activities. The New Yorker even lauds the speech as a “Major victory for Snowden and N.S.A reformers”.
For all its pretty rhetoric and invocation of days long past, the speech offered nothing new or surprising, let alone “radical”.
Rather, what it mostly did was try to reassure sceptics, the public, and foreign leaders about the NSA’s programmes; that they were not being abused, that a system of meaningful and effective oversight exists and – most importantly – that they are needed to keep people safe from terrorist and other attacks.
Crucially, Mr Obama announced that he will leave that most controversial capability in tact; the bulk collection of telephone records under section 215 (and do not let yourselves be fooled by those who claim that he called an end to this programme either. He merely called an end to it in its current form. You will see shortly that this is no actual end at all).
Mr Obama had this to say:
“[T]his program does not involve the content of phone calls, or the names of people making calls. Instead, it provides a record of phone numbers and the times and lengths of calls – meta-data that can be queried if and when we have a reasonable suspicion that a particular number is linked to a terrorist organization.”
Now. I cannot be the only one who finds this irksome.
Once again, between the lines, there is the implication that it is not the content of phone calls or names that is of interest but the metadata.
This may have sounded reassuring six months ago.
Oh good, we were supposed (and apparently are still supposed) to be thinking, the spooks aren’t listening to what I am saying. They are not sitting there eavesdropping on the secrets I exchange with my friends and family.
Yet, by now anyone informed about this programme and the true meaning and implication of metadata collection becomes rather more concerned than reassured by this kind of statement.
As has been repeated time and again, metadata is far more interesting and meaningful than the content of calls. It gives the people in possession of it far greater capabilities than the mere content could. It allows them to see who speaks to whom, for how long, and then who those people speak to after that. It allows for the mapping of everyone’s communications, for the establishment of connections, for the tracing of movements. It makes us all into little dots on a big map that can scrutinized at will.
Mr Obama himself said as much in his speech:
“The telephone metadata program under Section 215 was designed to map the communications of terrorists, so we can see who they may be in contact with as quickly as possible.”
This may (be intended) to sound good in theory but in practice it means that every single one of our communications could potentially be mapped and that we could fall under suspicion simply because someone who has been in contact with someone else who may be considered suspicious then comes in contact with us.
In practice, we could all show up on that map and be considered suspicious at one point or another in time.
To maintain, in light of this, that the government is not spying on ordinary citizens simply relies, according to The Washington Post’s Barton Gellman, on “an unusually narrow definition of “spying.””
Namely one that “does not include the ingestion of tens of trillions of records about the telephone calls, e-mails, locations and relationships of people for whom there is no suspicion of relevance to any threat.”
Of course, Mr Obama was quick to reassure people in his speech that mapping the movements of innocents is not what is being done and that this is not what the programme is for either.
“In sum,” the president said, “the program does not involve the NSA examining the phone records of ordinary Americans. Rather, it consolidates these records into a database that the government can query if it has a specific lead – phone records that the companies already retain for business purposes. The Review Group turned up no indication that this database has been intentionally abused.”
There are several problems with this.
Firstly, “specific lead” seems to be a rather unspecific term. What constitutes such a lead and who decides that any lead justifies the querying of that data?
Secondly, it is one thing for phone companies to retain the data for business purposes (and, mind you, no less worrying) but the government should, as Mr Obama himself admits, be held to a higher standard.
Thirdly, evidence does exist that the database has been abused – and intentionally as well. Remember LOVEINT?
And even if the violations aren’t wilful but the results of human error, there still needs to be a debate, I think, on whether we want all our communications to be stored in a way that allows for serious mistakes resulting in us becoming potential targets.
Mr Obama admits this too:
“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. They also rightly point out that although the telephone bulk collection program was subject to oversight by the Foreign Intelligence Surveillance Court and has been reauthorized repeatedly by Congress, it has never been subject to vigorous public debate.”
Ending the bulk metadata programme under Section 215 – without ending it at all
Which leads to what has been lauded as the most significant change announced on Friday:
“I am […] ordering,” Mr Obama said, “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 meta-data.”
This is where I feel that my view significantly differs from that of all those people who hail this as a massive step forward.
Bewilderingly, all these people seem to have heard for some reason is the first part of the statement: “I am […] ordering a transition that will end the Section 215 bulk metadata program as it currently exists…”
Now, be careful with that one. The phrase as is currently exists already gives away that this is no uncompromising abolition of the programme or its mass storage capabilities.
As Mr Obama said earlier on in his speech, he believes these capabilities are necessary. All he promises here is that the government will no longer store this data, not that the data will not be stored at all.
And this is where it gets really tricky because Mr Obama admits that, for now, the government has not really worked out where the data is to be stored in the future or by whom.
The system as it currently exists works like this:
The NSA stores a bulk of telephone data.
This data can be queried.
In theory, a warrant is needed if any of those queries target US citizens.
In practice it has been shown that the system of oversight that exists to prevent the targeting of American citizens is not as safe or reliable as it ought to be.
Now, the new system looks something like this:
Data will still be stored in bulk but by someone other than the NSA (and it is not yet clear who).
A procedure is to be established that requires the NSA to obtain permission to query that data.
I don’t know about you but to me that pretty much sounds like the same thing in a different box.
It is therefore not surprising that “privacy advocates are [not] particularly fond of [this course of action]: phone records will still be collected, stored, and available for search by the intelligence agencies. The question of where the data actually sits is, to opponents of the program, far less significant than the fact it is being stored at all.”
So then, perhaps the two most meaningful changes are these:
“Effective immediately, we will only pursue phone calls that are two steps removed from a number associated with a terrorist organization instead of three. And I have directed the Attorney General to work with the Foreign Intelligence Surveillance Court so that during this transition period, the database can be queried only after a judicial finding, or in a true emergency.”
One, instead of what has been called the “three hops” approach that allows people that are up to three calls away from any target to be pursued, from now on only people up to two calls away can be pursued.
This reduces the reach of the map described above: “Back-of-the-envelope Guardian calculations suggest this could reduce the number of people caught in the dragnet of a typical search from around five million to nearer 31,000.”
Two, from now on “analysts will first have to persuade a judge that there is reason to scrutinize callers linked to a particular phone number.” (Careful with this because there is a “loophole allowing the N.S.A. to act on its own in a “true emergency,” with after-the-fact judicial review.” Whatever constitutes a “true emergency” or who determines that is does is open to conjecture.)
Well, given the previous security from government overreach (or lack thereof), I fail to be very impressed by this.
Take into consideration what Glenn Greenwald writes with regard to the Fisa court: “[it] was designed to ensure that all of the government’s requests were approved: it met in secret, only the government’s lawyers could attend, it was staffed with the most pro-government judges, and it was even housed in the executive branch. As planned, the court over the next 30 years virtually never said no to the government.”
Similarly, after it was revealed in 2005 “that the NSA under Bush had been eavesdropping on Americans for years without the warrants required by criminal law, [instead of resolving the problem] [t]he US political class […] enacted a new Fisa law that legalized the bulk of the once-illegal Bush program, including allowing warrantless eavesdropping on hundreds of millions of foreign nationals and large numbers of Americans as well.”
Hence, rather than to abolish the programme, they made it legal. The same thing seems to be happening now.
Because get this: while Mr “Obama has announced an annual review of which Fisa court decisions should be declassified and made public, […he] has put the director of national intelligence in charge of overseeing that procedure. Additionally, Obama called for the “establishment of a panel of advocates from outside government” to advise the court of “significant” cases, but has called on Congress to implement this panel, and to decide how its role would work – assuming Congress establishes it at all.”
So basically, the chief spy is in charge of what information is made available to the public and it has been left to government to establish a panel of advocates outside of itself that is to advise the Fisa court on significant cases.
Seems like the power to make significant changes to oversight remains mostly with people who cannot and evidently are not that interested in oversight at all.
Take into consideration that there is still substantial opposition in Congress to the idea of reining in the NSA’s powers.
As such, “the Leahy/Sensenbrenner bill” – the USA Freedom Act that would end bulk data collection – “still faces a significant challenge from lawmakers close to the intelligence community, who say Obama’s defence of the NSA supports their position.
Pretty rhetoric but little actual substance
In fact, from the very start, the construction and rhetoric of the speech with its invocation of the war on terror, the cold war. and 9/11 hints to what the effective lack of meaningful reform makes very clear.
First and foremost, this is a speech designed to “give the American people greater confidence that their rights are being protected” while allowing the “intelligence and law enforcement agencies maintain the tools they [allegedly] need”.
What is still lacking is evidence of the effectiveness of the programmes, even though Mr Obama once again suggest that they have foiled a number of terrorist plots.
However, “Obama’s own review group concluded that the sweeping phone records collection program has not prevented any terrorist attacks.” You can read up on this and five other questionable claims Mr Obama made in his speech here.
What is also somewhat lacking is reassurance for people outside the US.
Granted, Mr Obama took pains to reassure foreign leaders and foreign citizens that “the US only spies for national security reasons, only takes industrial secrecy of other nations when there is a pressing national security lead, and doesn’t spy on foreign citizens for prurient reasons”, but all of these assurances were rather vague, including as yet unspecified safeguards.
I should also like to ask who determines what a “pressing national security lead” is precisely.
Falling short of recommendations
In any case “steps do fall substantially short of what Obama’s review panel recommended”.
“For example, Mr. Obama did not accept one of the most far-reaching recommendations of his own advisory panel on surveillance practices: requiring court approval for so-called national security letters, a kind of subpoena allowing the F.B.I. to obtain information about people from their banks, cellphone providers and other companies,” the New York Times reports.
Thus, despite the rhetorical finesse of this speech, it remains to be seen how many meaningful changes to these programmes will really be made.
As the Guardian reports, “[i]nternational campaign groups were […] critical, arguing that there was little substance behind the president’s rhetoric, likening it to “music on the Titanic unless his administration adopts deeper reforms.”
“The big-picture takeaway from today’s speech,” according to Amnesty International USA, “is that the right to privacy remains under grave threat both here at home and around the world.”
They are not wrong. In the end, the speech was a defence of the NSA and its programmes.
And reading between the lines of Mr Obama’s comments about Edward Snowden, it is hardly reassuring that the president, even in light of the necessary debate that Mr Snowden’s revelations have started, still does not acknowledge Mr Snowden’s actions as beneficial or necessary.
“If any individual who objects to government policy can take it in their own hands to publicly disclose classified information, then we will never be able to keep our people safe, or conduct foreign policy.”
In essence, he is still saying that what Mr Snowden did was wrong, that his actions have endangered security (again, there is no evidence of this) and that he should have tackled the issue in a different way by going the official route and “tak[ing] advantage of whistleblower protections.”
Yet not only has Mr Obama’s government prosecuted whistleblowers in an unprecedented manner. More than that, the protections Mr Obama refers to do to extend to contractors.
I have said this before and I am going to say it again: to acknowledge that a debate is necessary while at the same time blaming those who have brought this debate about is either a paradox or it betrays that you would have preferred not to have a debate at all, or, if you did, to have it on your own terms and within your own control.
That, however, would not be true and meaningful debate at all.
It is therefore not much of an acknowledgement that “this debate will make us stronger” because the question remains as to who will emerge stronger at the end of it. Given the unimpressive nature of the proposed reforms it might still be the NSA.
And I am not the only one who thinks that Obama’s speech was mostly underwhelming.
Senator Rand Paul, for one, told CNN: “It’s not about who holds it, I don’t want them collecting Americans’ information.”
Perhaps unsurprisingly one of the most clear-spoken critics of the president’s speech is Glenn Greenwald, who points out that the “cosmetic “reforms”” Mr Obama calls for mainly serve “to placate public anger while leaving the system fundamentally unchanged, even more immune than before to serious challenge.”
Mr Greenwald isn’t wrong when he writes that while the speech offers “positive steps [such as 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)”, it was also dismayingly “bereft of specifics”.
Similarly, the New York Times suspects that the president’s speech was “more calculated to reassure audiences at home and abroad than to force radical change”.
What I wonder is whether mollifying the indignation felt by international leaders will not also serve the US’s end of further isolating Edward Snowden. Placated international governments may be even less inclined to see the value of Mr Snowden as a witness or the moral imperative that they have been trying to overlook for so long; that someone who made them aware of the US’s overreach deserves their protection and help.
Most importantly though, “the radical essence of the NSA – a system of suspicion-less spying aimed at hundreds of millions of people in the US and around the world – will fully endure even if all of Obama’s proposals are adopted.”
That, in the end, is really what we should be taking away from the President’s speech, that it is merely “the first step, not the last, on the road to restoring privacy.”
If we let ourselves be lulled into believing that this is it, truly meaningful reform is not likely to happen. That is what this speech is truly indicative of and we would do well to make ourselves aware of that.
Other related incidents #1: Project Dishfire
To conclude, some other news I felt were worthy of note this week.
Firstly of course the revelation that the spooks are reading our texts.
As the Guardian revealed jointly wth UK’s Channel 4, “The National Security Agency has collected almost 200 million text messages a day from across the globe, using them to extract data including location, contact networks and credit card details, according to top-secret documents” while the “UK spy agency GCHQ has made use of the NSA database to search the metadata of “untargeted and unwarranted” communications belonging to people in the UK.”
The project is called Dishfire and it is yet another example of how data is indiscriminately sucked up by the NSA and of how surveillance agencies circumnavigate restrictions placed on domestic spying.
Feel reassured? Didn’t think so. More information on what the spooks potentially know about you and your travel plans here.
Other related incidents #2: UK Foreign Secretary William Hague gets Rusbridgered
Elsewhere in the UK, the Guardian’s Alan Rusbridger was interviewed on NSA and GCHQ surveillance.
Responding to questions regarding comments made by UK Foreign Secretary William Hague, who lauded the UK as having “one of the strongest systems of oversight”, Mr Rusbridger clarified some important points:
One, he “pointed out that leaked documents seen by the Guardian show a GCHQ legal adviser argued that “we have a light oversight regime compared with the US“.”
Two, “[h]e said that metadata – the details of who sent contacted whom, and when – could reveal “almost everything about you”. I repeat: maintaining that collecting metadata instead of content isn’t spying is to rely on a narrow definition of spying. You could also call it lying.
Three, Mr Rusbridger repeated once again that “[t]here was no evidence for the “theatrical” claim by Sir John Sawers, the head of UK foreign intelligence agency MI6, that terrorists were “rubbing their hands with glee” at the Snowden revelations.” Just in case you were wondering if that was still a thing.
Other related incidents #3: spies fantasize about killing Edward Snowden
And finally, it seems that I wasn’t wrong last week when I wrote that I am not sure a plea bargain or clemency that will see Edward Snowden’s return to the US is a good idea.
I didn’t think it sounded safe.
Cue Buzzfeed, which this week published comments by US spies who not only said they wanted Edward Snowden (the “traitor”) dead but also that they would be quite happy to do him in themselves.
And they are sickeningly specific about the “how” of it as well.
Let us be clear: there are no circumstances – none whatsoever – in which a human being can forfeit their right to life. Countries that have abolished the death penalty thankfully have made this principle law. It just doesn’t seem to have reached the USA yet.
This outdated mindset needs to be changed urgently.
There is something fundamentally wrong (and certainly completely outdated) about the idea of revenge or the belief that it is sometimes acceptable to take “an eye for an eye”, let alone a life for a life or, as in Edward Snowden’s case, a life for something that some people see as treason but others (myself included) see as a brave act of civil disobedience.
This the 21st century.
People need to realise that taking another person’s life is inacceptable, and they need to do it quickly.
But until they do, Edward Snowden is not safe in the US.
Having said that, I encourage everyone to sign this petition to secure him asylum in Brazil.
Let us stand with Mr Snowden and help make sure he stays protected!