Obama’s reformed NSA may look much the same as before

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By Fiona de Londras, Durham University

President Obama faced a difficult task in his speech on reform of the NSA’s surveillance activities. As an accomplished orator, crafting a well-received speech was obviously within his capabilities, but proposing a reform package for intelligence surveillance that would find favour with the public, politicians, security services, and the international community was the real challenge.

Edward Snowden’s revelations about the scale of NSA surveillance – and especially foreign surveillance – have led to both diplomatic tension and a lively domestic debate about how to strike a balance between surveillance and privacy. As well as that, of course, questions about how to achieve effective oversight have been raised, not least by the group the president himself asked to review the matter.

On the one hand, some claim that surveillance is a necessary part of counter-terrorism and security, and that blanket surveillance is relatively unproblematic. According to this view, if one has nothing to hide, one has nothing to fear and if one does have something to hide it will be detected. For adherents of this view, rebalancing is not necessarily required, although more transparency about NSA surveillance activity might be.

On the other hand are those who claim that widespread surveillance infringes disproportionately on privacy and freedom of expression because it is indiscriminate. There is also the claim that the volume of information gathered may lead to false positives – so many of us are under surveillance, even though such a small number of us have something to hide, that the chances of innocent people being accused of wrongdoing are high. There is equally a danger that important information could be overlooked.

Obama’s speech was widely anticipated by a public and press keen to see whether he would commit to changing both how the NSA works and what it does, or if he would focus only on introducing greater oversight. His own review body proposed both, arguing that it is time to see liberty as part of security rather than something that needs to be balanced against it. A similar approach was certainly suggested by the headline items in Obama’s speech.

Obama assured us that the intelligence community is not cavalier about privacy and civil liberties; that the NSA is staffed by professionals; and that surveillance makes both the US and other nations safer. At the same time, he acknowledged the risks that mass data collection and surveillance poses to “our tradition of limited government”.

What will change

It seems that more decisions “with broad privacy implications” made by FISC will be declassified, and the review group’s recommendation that public interest advocates should represent privacy and other civil liberties before the court will be pursued.

Corporations will be allowed to offer more clarity to customers about the extent to which they are sharing information with security and intelligence agencies. The retention of and access to data about people outside the US will be subject to more regulation and take place only for “legitimate” security reasons. The use of information that is “incidentally” collected for criminal prosecutions will be limited.

It is clear though that surveillance is not going away. Nor are the NSA, the Foreign Intelligence Surveillance Court, National Security Letters or data retention. The collection of bulk (or meta) data will continue, although there will be some reforms to how it is held, accessed and used. Understandably, more time is needed to design that system; Obama announced that proposals should be delivered to him by the end of March.

Devil in the detail

These are all worthwhile and valuable reforms but it is not yet clear if they will lead to meaningful change. Qualifications were not uncommon in the speech. So, for example, we now know that some data will be accessible only after a judge permits it or there is a “true emergency”.

However, we do not know what kind of hearings these would be, or who will decide whether an emergency exists. We were told that there will be annual reviews as to declassification, but we do not know what factors will be taken into account. Crucially, we still lack the detail of how those outside of the US will be able to effectively protect their privacy: what will constitute “legitimate” security concerns? When will bulk data be accessible? How long will it be retained for?

It would, of course, be unusual for a speech of this kind to deliver that level of detail. However, it would also be unwise to herald a new and more rights-sensitive surveillance system without it. The speech set the tone for a relatively more controlled system of surveillance. Whether or not that system will be balanced, elicit the confidence of those within and outside the US, and minimise the risk of abuse remains, however, to be seen.

Fiona de Londras is the Project Co-Ordinator of SECILE (Securing Europe through Counter-Terrorism: Impact, Legitimacy and Effectiveness), a project that has received funding from the European Union Seventh Framework Programme (FP7/2007-2013) under grant agreement n° 313195.

The Conversation

This article was originally published at The Conversation.
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Professor Fiona De Londras

About Professor Fiona De Londras

Professor Fiona de Londras is Durham’s academic representative for SECILE. She is a specialist in human rights, counter-terrorism and constitutionalism. Professor de Londras has recently published Detention in the War of Terror: Can Human Rights Fight Back (2011) and is currently working on a further monograph on the human rights implications of corporate involvement in counter-terrorism. She has published more than twenty peer-reviewed articles in notable international journals such as Human Rights Quarterly.
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