Obama's NSA Telecom Surveillance Reforms Really Won't Change Much

By Wayne Rash  |  Posted 2014-01-18 Print this article Print

But the implementation of those privacy panels is opposed by the Foreign Intelligence Surveillance Court (FISC), which raises questions about how effective they may be. After all, the federal courts don't work for the White House, and can safely ignore presidential directives if they so wish. Legislation to force the issue would need to come through Congress, but then you have the same issues with Congress that I mentioned above.

What will likely happen is that the NSA will return to the same procedures it used before the terrorist attacks of Sept. 11, 2001, which is to get a court order approved by FISC, and then look for the data. This didn't work well in the past, but things have changed a lot in 13 years, and the NSA has gained significant expertise in handling big data. So if the agency needs the data, it can probably find it quickly when it needs to. The FISC can move quickly if asked and if the NSA perceives a real threat, it will certainly ask.

The other announcements by the president don't really apply to the handling of information relevant to U.S. nationals. The announcement that the rights of foreign citizens would be treated with respect means little. And the foreign heads of state who expressed outrage at spying were doing so strictly for public consumption.

It's no secret that the United States spies on its allies, just as our allies spy on the United States. If you have questions about that, just look at the number of U.S. citizens who have been arrested for spying on behalf of Israel. In short, the outrage was for the benefit of their constituents.

In addition, intelligence agencies will only be able to focus on connections in the metadata within two degrees of separation rather than three, which is the case now, except in an emergency or when information indicates further analysis is necessary.

But then there's that other nagging question. Without access to the data it needs to track down enemies, can the intelligence community protect the United States? There's considerable evidence that a number of attacks have been thwarted in the years since 9/11. What we don't know is how many of those attacks were prevented by the big data analysis of phone metadata.

Still, the requirement for some oversight is always good. But it seems like the limits on surveillance are slightly off. We're focusing on phone metadata, for example, but doing nothing about the far more invasive National Security Letters that the FBI seems to pass out without restriction. How are those compliant with the Fourth Amendment to the Constitution? Maybe a few more requirements for court orders, and advocacy representation by that privacy panel should address those letters.



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