Still Unprotected

President Obama’s reforms at the NSA won’t protect Americans’ privacy from continued government intrusion.

When we learned the National Security Agency (NSA) was collecting the phone data of every American last June, it posed a serious constitutional question: Do we no longer have a Fourth Amendment?

On Friday, Jan. 17, President Barack Obama essentially responded, "No, we really don't."

The president is to be commended for trying to enact reforms at the NSA. At the very least, he recognized a problem and sought to address public concerns.

But nothing he said in his speech reverses or even significantly impedes the government from prying into the private lives of citizens as a general practice. Nothing fundamentally changes about how our privacy is still unprotected.

The Fourth Amendment was included in the Constitution precisely to prevent the issuing of general warrants, in which blanket authority is given to the government to spy on citizens at will. The American colonists had to endure general warrants used by the British, who went to door to door searching as they pleased.

The lesson of the American Revolution was that this should never happen again, and yet the NSA's data collection program is the modern equivalent of this practice. President Obama cited Paul Revere in his speech, but Paul Revere rode through the streets to tell us the British were coming -- not that the Americans are coming.

In misdiagnosing the problem, the president offers the wrong solutions. The primary question remains, "Can a single warrant be applied to millions of Americans records?" President Obama still says yes.

Even though President Obama assures us "the United States is not spying on ordinary people," this statement does not jibe with any of his suggested reforms. Plus, we've heard these types of assurances before. 

Obama saying that his new policy will only examine private information "two steps" removed from the target, as opposed to the current policy of three steps, is no comfort at all. The president might as well be saying we're only going to abuse the Fourth Amendment twice, not three times.

Our current mass surveillance policies are either proper or improper. Unfortunately, even after the promise of minor tweaking, the president still considers them far too proper.

Attempts to seek permission for surveillance from designated offices of the NSA, independent contractors, or some special third party will not alleviate the problems in question. We have always separated police power from the judicial power. Warrants come from judges and are supposed to be focused on specific persons or tasks. I would not trust the NSA to police itself outside the bounds of the Constitution any more than I trust Congress to do the same.

An America in which the president of the United States essentially approves of the government collecting your phone records, your emails, your texts, your credit-card records, and other private information is not an America that those who founded it would recognize.

Today, the NSA provides a dragnet that picks up virtually everything we do, and President Obama simply attempting to poke a hole here or there does not change the unconstitutionality of this still widely cast net.

The president sees a different kind of America than what our Founding Fathers envisioned. I still think they got it right, and in my capacity as a United States senator will work diligently to restore and defend the Constitution that both the president and I swore to uphold.

SAUL LOEB / AFP / Getty Images


Just the Data, Ma'am

Obama admitted to dragnet surveillance. We still don't know what will happen next.

After months of global criticism sparked by Edward Snowden's leaks of dragnet NSA surveillance at home and abroad, President Barack Obama finally took the podium on Jan. 17 and acknowledged the concerns that those disclosures raised. His admission of the problem was critically important. But his proposed changes will not go nearly far enough to address the very real issues he himself identified.

Obama insisted that technological advances require Americans to rethink the limits on spying, saying that "the power of new technologies means that there are fewer and fewer technical constraints on what we can do. That places a special obligation on us to ask tough questions about what we should do." He rejected the argument, often made by NSA supporters, that because Americans share digital information via phone, web, or email with commercial businesses -- or purchase anything with a credit card -- they have no right to object to the government getting that information. (This is the very argument the Supreme Court adopted in the 1979 analog-era decision, Smith v. Maryland, in which the court ruled that citizens had no expectation of privacy, and therefore no Fourth Amendment protection, with respect to the phone numbers they dial, because that information is necessarily shared with the phone company.) In Obama's words:

"Corporations of all shapes and sizes track what you buy, store and analyze your data, and use it for commercial purposes; that's how those targeted ads pop up on your computer or smartphone. But all of us understand that the standards for government surveillance must be higher. Given the unique power of the state, it is not enough for leaders to say, ‘Trust us, we won't abuse the data we collect.' For history has too many examples when that trust has been breached."

The dynamics of surveillance have dramatically changed since 1979, and even since 9/11. The very technology that tracks terrorists across the world, Obama said, can also track ordinary law-abiding citizens. Digital technology now makes it possible to collect and analyze massive amounts of personal data, and the president admitted that "there is an inevitable bias not only within the intelligence community, but among all who are responsible for national security, to collect more information about the world, not less."

These are important concessions from the man who oversees the most technologically advanced spying apparatus in the world. The need for privacy-law reform in the digital age flows directly from these premises. If the United States doesn't update privacy protections to account for the expanded power government agencies have to digitally track people, privacy will go the way of the eight-track player. So if President Obama's speech marks the beginning of a process of reform, it is a long-awaited first step.

The danger, however, is that some people, especially those in the intelligence community, will treat it as the end of the discussion. And that would be fundamentally wrong, because the actual reforms Obama proposed do not go nearly far enough.

Obama has required the NSA to get specific approval from the Foreign Intelligence Surveillance Court (FISC) before searching through Americans' phone records, and he has said that he will explore having the phone data held by some entity other than the NSA. He has called for a panel of independent advocates to appear before the FISC in at least some cases, introducing a necessary element of adversarial argument to what until now has been an entirely one-sided process. And he has called for somewhat expanded privacy protections for foreign nationals subject to NSA spying.

But here's what he hasn't done. On the domestic front, he has not ended the practice of collecting records on every American's every phone call -- without any suspicion of wrongdoing. He has rejected the recommendation of his own expert panel that the FBI be required to get court approval before it demands customer information from banks and communications-service providers under another expansive Patriot Act provision. He has not called for any narrowing of the statute that authorizes the NSA to intercept all communications of any person the agency suspects -- with 51 percent probability -- is a foreigner living abroad. And what about the NSA's most lawless practices: its insertion of vulnerabilities into private companies' encryption codes and its hacking of communications links between the Google and Yahoo data hubs based abroad? Not even mentioned.

In short, Obama has left dragnet surveillance -- and worse -- in place, while tinkering around the edges with how the information obtained through mass surveillance might be used. Seeking to assure domestic and international audiences alike, he asserted that "the bottom line" is that "people around the world -- regardless of their nationality -- should know that the United States is not spying on ordinary people who don't threaten our national security." But that is simply not true. With nothing more than a 51 percent probability that a person is a foreigner, the NSA is authorized to intercept that person's phone calls, emails, and internet activity. That means it can spy on millions of "ordinary people who don't threaten our national security."

Within the United States, the NSA still collects data on every Americans' every phone call -- which, again, by definition, includes mostly "ordinary people who don't threaten our national security." And it is almost entirely those same ordinary people whose personal information was vacuumed up when the NSA broke into the overseas data centers. The president has assured the world that the NSA will only use the massive databases of personal information it collects for national security purposes, and not for illegitimate ends. But that's what J. Edgar Hoover said about spying on communists. And we know how that turned out.  

The challenge of preserving privacy in the digital age is immensely complicated, and no one could expect it to be solved in a single speech. The good news is that Obama has admitted there is a problem to be addressed. The bad news is that his reforms don't go nearly far enough toward resolving the problem. It is up to the other branches of government -- and more fundamentally, to American citizens -- to insist that this be only the beginning, and not the end, of NSA reform.