More than six months after the leaks from former National Security Agency contractor Edward Snowden began, critics and supporters of the NSA are waiting for President Obama to announce what changes to government surveillance policies he can support.
“After this morning’s meeting with the President it is clear to me that he and his administration are wrestling with the serious issues surrounding the disclosures of the last six months,” said Oregon Democratic Senator Ron Wyden, one of the NSA’s biggest critics in Congress, in a statement following a meeting at the White House. “What is also clear to me is that decisions about the future of these programs are being made now and that it is a crucial time for those who believe that security and liberty are not mutually exclusive to make their voices heard.”
There are a number of changes to the law that civil liberties advocates would like to see. But the main point of contention is whether or not the government will end the agency’s bulk collection of communications records under Section 215 of the Patriot Act. In June, a secret foreign intelligence court order leaked by Snowden showed that the NSA was collecting millions of communications records containing the date, time, and originating and receiving numbers pertaining to nearly every call made through American communications companies. Yet even as the administration’s top intelligence officials have emphasized the program’s value, the president himself has remained tight-lipped about the main goal of legislators seeking to change the law.
So far it’s been a harsh winter for the NSA. In December, a federal judge ruled that the agency’s bulk collection of communications records was likely unconstitutional. Shortly afterwards, a review board appointed by the president himself concluded that the program was “not essential” to stopping any terrorist attacks. The agency got a boost in late December when a different federal judge sided with the NSA, ruling that Americans have no expectation of privacy in communications records held by third parties. Top intelligence officials have warned that altering the program could lead to another massive terrorist attack on American soil.
The president has spent the last week meeting with intelligence officials, federal legislators, and civil liberties advocates. Another report on NSA surveillance, put together by the president’s civil liberties and privacy board, is set to be released by the end of the month.
The President’s Review Group on Intelligence and Communications Technologies, which is distinct from the Privacy and Civil Liberties Board, published a report last month recommending that the communications data the NSA is collecting be retained by the communications’ companies themselves, and forcing the NSA to get permission from a court before it queries the data, and only then if it is seeking information about “particular indviduals.”
“I think everyone is focused too much on this issue of who retains the data…the question is, is a court involved, and what is the standard?” says Michelle Richardson of the ACLU. “If you still allow the NSA to query it and come back with thousands and thousands of records, you’re still doing bulk collection.”
Many of the report’s recommendations are similar to a proposal put forth by Wisconsin Republican Rep. Jim Sensenbrenner and Vermont Democratic Senator Patrick Leahy. A proposal by California Democratic Senator Dianne Feinstein would leave the NSA’s approach to data collection largely unchanged.
“All three branches of government have said the NSA has gone too far. Even President Obama’s hand-picked panel agrees that bulk collection by the NSA has come at a high cost to privacy without improving national security,” said Sensenbrenner in a statement. “Enacting this bill would protect Americans’ civil liberties while keeping intact the tools necessary to protect our nation.”
With the sense that the debate over government surveillance will soon reach its pivotal moment, supporters of leaving surveillance law largely unchanged sought to show that Snowden’s leaks had damaged national security. House intelligence committee chair Rep. Mike Rogers put out a statement Thursday on a classified Pentagon report, saying that the report showed that “Snowden is no patriot and there is no way to excuse the irreparable harm he caused to America and her allies, and continues to cause.”
The Pentagon report has not been made public, much like the scope of the NSA’s data collection was not public prior to Snowden’s leaks.
Adam Serwer