Politics

Obama's NSA Review Panel Suggests Broad Reforms, Including to Phone Metadata Collection

Among the 40-plus recommendations drafted by President Obama's surveillance review panel is one that would overhaul the phone metadata collection at the heart of this week's court ruling against the NSA

By Philip Bump
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Among the 46 recommendations drafted by President Obama's surveillance review panel is one that would overhaul the phone metadata collection at the heart of this week's court ruling against the NSA. Whether that or any of the other suggestions is actually enacted, however, remains to be seen.

"We endorse a broad principle for the future," the report from the five-person panel states, establishing one of its clearest lines of opposition to a key NSA procedure.

[A]s a general rule and without senior policy review, the government should not be permitted to collect and store mass, undigested, non-public personal information about US persons for the purpose of enabling future queries and data-mining for foreign intelligence purposes. 

Unsurprisingly, then, the panel recommended ending "the storage of bulk telephony meta-data by the government," but still collecting the information to be held "by private providers or by a private third party." That could include telecommunications companies. One reason for the recommendation was noted by Dan Froomkin: the data collection used in terror investigations "was not essential to preventing attacks."

The panel also recommended that Congress create a position it called the "Public Interest Advocate" that would provide a counterpoint to the government's arguments at the secret court that approves surveillance. Following reports that the NSA had actively worked to undermine encryption standards, the panel suggested that the agency "fully support and not undermine efforts to create encryption standards."

There are some existing questions about the report's recommendations. Trevor Timm of the Electronic Frontier Foundation notes a recommendation that the NSA not manipulate financial systems — behavior of which there isn't any evidence to date. Timm's Twitter account is a stream of details from the report; The Guardian also has an excellent liveblog culling details. Like this:

The full report is below. Among the highlights is this paragraph, in which the panelists assess the nature of a choice between privacy and security.

It is tempting to suggest that the underlying goal is to achieve the right “balance” between the two forms of security. The suggestion has an important element of truth. But some safeguards are not subject to balancing at all. 

For example, the government should never target political enemies, restrict speech, help preferred companies or industries, or "burden" particular demographic groups.

The EFF expressed "disappointment" with the continuation of surveillance in a statement, but that it suggested that the government had "joined the global consensus that the NSA has gone too far." The American Civil Liberties Union said that the NSA's activities are "un-American, unconstitutional, and need to be reined in," then urging Obama to "accept his own Review Panel’s recommendations and end these programs."

Original post: The Washington Post got an early look at the proposals, which were released Wednesday afternoon. They include:

  • dissolving the NSA's database that collects metadata (earlier reports suggested that the databases of call records would instead be maintained at the phone companies)
  • "barring NSA from asking companies to build 'backdoors' into their software so that the government may gain access to encrypted communications"
  • "barring it from undermining global encryption standards"
  • "prohibiting it from stockpiling 'zero day' hacking tools that can be used to penetrate computer systems"

According to Guardian reporter Dan Roberts, a proposal to separate the military-focused cyberwarfare arm (the Cyber Command) from the rest of the NSA's work will apparently not be among the things Obama adopts.

We don't know yet which other proposed reforms the White House will adopt. According to White House spokesman Jay Carney, Obama will at some point give a speech outlining the reforms he has decided to introduce. Some would then need Congressional approval. Obama met with members of the panel on Wednesday morning.

When first announced in August, the reform panel met with some skepticism (including from us), given that it is comprised largely of national security veterans. If the president does accept some of the more stringent restrictions, for which there exists political support, it will be a remarkable turnaround from Obama's past statements — and a huge victory for NSA leaker Edward Snowden.

Earlier reports from The New York Times and the Washington Post seem to have approximated some of the eventual recommendations. Carney told reporters on Wednesday afternoon that the recommendations are being released now to counter inaccuracies about their contents.

Update, 2:45 p.m.: The Privacy and Civil Liberties Oversight Board, the civilian body created in the wake of the 9/11 attacks to protect civil liberties, announced today that it will release a report early next year with its assessment of the NSA's toolset.

Update, 4:00 p.m.: Here's the full report.
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