When the disclosures from National Security Agency whistleblower Edward Snowden first began to be published by The Guardian and Washington Post, the immediate reaction of President Barack Obama was not much different from the reaction of NSA Director Gen. Keith Alexander, who now believed his agency was under some kind of unwarranted siege.
It now seems the bulk surveillance program, which collects all American consumers’ phone records, which Obama and others in government have spent months defending, will never have the public’s support. And now that Americans know about the nature of this once kept secret program, Obama and members of Congress that sought to defend the surveillance are having to support “ending” the program in some way or another.
Obama’s initial comments in June were that the surveillance represented “modest encroachments on privacy.” It was under “very strict supervision by all three branches of government.” The “right balance” had been struck. And, “If people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the constitution, due process and rule of law, then we’re going to have some problems here.”
The president appeared on “The Charlie Rose Show” on PBS that same month and sought to explain to Americans that the NSA could not listen to telephone calls or target emails, which is not true. He downplayed the bulk collection of phone records saying, “All it is, is the number pairs, when those calls took place, how long they took place,” declining to acknowledge how collecting the metadata of phone calls can violate privacy more than the collection of the content of phone calls.
By August, a shift began. Obama accepted that Americans had “questions” about surveillance. “Confidence” had to be restored. That was when reexamining bulk surveillance first became a possibility. He insisted in September that a lot of checks and balances were in place to “avoid a surveillance state” but suggested “it may be that the laws that are currently in place are not sufficient to guard against the dangers of us being able to track so much.”
An NSA review group was appointed by Obama to review US surveillance programs. It ended up releasing a report that recommended the NSA stop storing bulk telephone metadata under Section 215 of the PATRIOT Act. Private providers or a private third party should hold the data.
The USA Freedom Act, bipartisan legislation that would end the dragnet collection of phone records, was introduced by Democratic Senator Patrick Leahy and Republican Representative Jim Sensenbrenner.
On January 17, Obama delivered a speech announcing the reforms he would be willing to support.
“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,” Obama conceded. “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.”
His announced reforms indicated the “core and function of existing programs,” as CNN put it, would be left in tact. All the capabilities of bulk collection would still continue. The NSA would simply no longer be holding the data.
Finally, as it became known that the Obama administration would be pushing a proposal to “end” NSA bulk collection of phone records, Obama stated, “We have got to win back the trust not just of governments, but, more importantly, of ordinary citizens. And that’s not going to happen overnight, because there’s a tendency to be skeptical of government and to be skeptical of the US intelligence services.” He said reforms he supported were “workable” and would “eliminate” concerns that privacy advocates had.
“I am confident that it allows us to do what is necessary in order to deal the threat of a terrorist attack, but does so in a way that addresses people’s concerns,” he declared.
The remarks indicated the NSA’s collection of phone records is no longer something officials are willing to defend in public. This political development would not have been possible without Snowden revealing the program more than nine months ago.
Just today The Associated Press has a report where the media organization says it has learned the Senate Intelligence Committee was secretly considering “alternate ways” for the NSA to “collect and store massive amounts of Americans’ phone records.” One of the ways was what Obama has now proposed: asking phone companies to “search their own business records for terrorism connections.”
This all happened in secret so the senators were under no obligation to actually follow through and do anything at all. Officials decided to do nothing after reviewing a 2011 NSA analysis.
Here’s the critical part of the AP’s story:
The 2011 report is significant because not much has changed — operationally — with the NSA’s phone records program in the past three years. What has changed is that Americans now know the extent of the once-classified, massive surveillance operation, and they’re not happy with what they consider to be invasions of privacy.
Obama’s decision to call for changes in the program is not because he believes the program is flawed. It’s because he needs to regain the trust of the American public.
Snowden’s forceable act of transparency brought a program out of the shadows that the Obama administration refused to make public, even when faced with Freedom of Information Act lawsuits.
It took nine months after this secret surveillance program became known for all support to unravel and for the public’s consciousness to shift tremendously.
Now, there is an Obama administration proposal, a bill from Republican Rep. Mike Rogers and Democratic Rep. Dutch Ruppersberger, who have both been fierce defenders of the NSA, and there is the USA Freedom Act. The details of the proposal remain unknown so it is unclear how exactly the administration will “end” the collection but maintain many capabilities.
The bill from Rogers and Ruppersberger actually would give the NSA the power to collect more information than they can under Section 215 of the PATRIOT Act. They could collect data on phone numbers without obtaining a court order. It may even go a long way toward legalizing the collection of data and records of various communications that have been rarely debated thus far.
Is this all intended to neutralize the USA Freedom Act and ensure that bill does not pass? Because that bill was actually proposed by a senator and congressman, who have both been outspoken on privacy and critical of NSA capabilities revealed by Snowden.
The government is being sued in court for phone records collection. Those lawsuits will likely continue to be pursued, but are these developments intended to prevent another judge from ruling the surveillance is unconstitutional?
What is clear is Obama, members of Congress and the national security state, who intend to preserve certain surveillance capabilities that have been called into question, do not concede that anything improper or unlawful was done. Neither do they appropriately question whether this surveillance is necessary to thwart terrorism, even though analysis has shown massive suspicionless surveillance—the product of a collect it all mentality in intelligence—cannot be proven to have kept this nation safe.
Essentially, Obama and the political class admit the public has lost confidence but do not necessarily agree that it was reasonable for the public to lose complete confidence (and they are willing to punish Snowden for this loss of trust).
There are also issues related to the surveillance of Internet communications, weakening encryption, targeting the data centers of Google and Yahoo, collecting email address books, violating attorney-client privilege, etc, that has gone completely ignored.
That should alarm Americans. It should put all citizens on alert that these recent remarks, announcements and proposed moves are probably a part of a long-term shell game.
How will the NSA maintain surveillance powers Americans oppose by significantly shifting how those powers are exercised so they can persuasively argue they are doing things differently (if necessary)? What veneer of oversight will be grafted onto surveillance that will not make the collection any more lawful?
Just because Snowden has turned Americans against mass surveillance does not mean the government won’t convince telecommunications companies to keep feeding it the data it thinks it should be able to access. Citizens should be wary of the possibility of secret government becoming more secretive and more adept at secrecy than ever.