Surveillance Puts Obama’s Legacy In Question

The following opinion piece originally appeared on the Committee to Protect Journalists’ Internet Channel.

When President Obama takes the lectern to discuss U.S. surveillance policy, as he is expected to do Friday, those hoping for sweeping reform are likely to be disappointed. As reported in The New York Times, the president appears poised to reject many of the recommendations of his Review Group on Intelligence and Communications Technologies, a brain trust of five experts he handpicked to study U.S. intelligence practices in the wake of disclosures by former NSA contractor Edward Snowden.

This would be a mistake.

The White House review group examined the issues soberly and carefully, producing a 308-page report that includes 46 recommendations for surveillance reform. Its members published an opinion piece in The New York Times publicly highlighting what they felt were the most important recommendations, and yesterday each of them appeared before the Senate Judiciary Committee to present testimony. Nonetheless, the president appears unconvinced, and instead seems willing to “give up essential Liberty, to purchase a little temporary Safety,” as Benjamin Franklin put it. (Franklin, famously, said those who make such a tradeoff “deserve neither Liberty nor Safety.”)

But stepping back from Franklin’s absolutism, if the president is going to pick and choose from the review group’s recommendations, there are several that would arguably have a profound and immediate impact on press freedom. Many of these overlap with the recommendations emphasized by the review group’s op-ed, as well as with recommendations by the Global Network Initiative, of which CPJ is a founding member:

• End the domestic bulk call records program as it currently exists, and severely restrict bulk collection and retention of non-public data generally.

The White House review group, a federal judge, and independent experts agree: the NSA’s mass call records program invades legitimate privacy interests, and it does not work. Even the government tacitly admits this latter point: having claimed that the program foiled 54 attacks in June of 2013, as of last week the NSA has resigned itself to describing the program as an “insurance policy.” (When asked about the program in December, even Obama could not identify a single thwarted attack.)

By contrast, like a nightmarish version of the Associated Press call records subpoena, bulk data collection of this sort could easily link journalists with their sources, as Foreign Policy pointed out in September.

The White House review group urged strict curbs on bulk data collection more broadly, recommending that it be “narrowly tailored to serve an important government interest,” and subject to senior policy review. This is crucial, as there are many ways in which even “non-content” metadata can constitute extraordinarily revealing surveillance.

Finally, it is important to note that the review group suggested mandatory data retention by private parties as a possible alternative to the current paradigm, a suggestion Obama floated in a recent press conference. This “solution,” while somewhat better than unfettered government access to communications records, is dangerous and should be rejected.

• Promote a “strong presumption of transparency” so elected representatives and the American people may independently assess the merits of programs for themselves.

Photo by Steve Rhodes on Flickr and used here with Creative Commons license.

Transparency is fundamental to reform. Just as the public would not know about the extent of the NSA’s spying but for Edward Snowden, the FBI’s COINTELPRO dirty tricks but for a group of idealistic burglars, or the secret history of the Vietnam War but for whistleblower Daniel Ellsberg, many of the most egregious abuses will likely only come to light when sources share information with reporters. Nonetheless, the government serves both the public and its own interests by showing that it is operating openly and in good faith to the greatest extent possible.

The review group’s recommendations to enhance transparency include: reforming “gag orders” placed on the recipients of national security orders; lifting restrictions on the publication of general information about secret data-production orders by third-party recipients such as ICT companies; increased reporting of similar statistics by the government; and a shift away from secret programs and law. As James Madison observed, “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.”

• Information about individuals should be limited to foreign intelligence information directed exclusively at protecting national security interests, must be collected pursuant to law or executive order, and the collection or use of information about U.S. persons should be sharply limited.

At present, the gathering of information on non-U.S. persons located outside of the U.S. is subject to very little oversight. As NSA Director Gen. Keith Alexander is reportedly known to say, the agency prefers to “collect it all.” Although data collection on U.S. persons is subject to more restrictions, the NSA nonetheless searches vast amounts of Americans’ private information. This “incidentally” collected information can be stored for years — in some cases indefinitely — and can also be shared with law enforcement.

The changes proposed by the review group would serve journalists by eliminating many of the “back doors” the NSA uses to get around restrictions that would prevent it from spying on reporters in the U.S., which the agency did during the Cold War and is alleged to have done more recently. Specifically, the recommendations would require that incidentally-acquired information about U.S. persons must be purged immediately unless it has foreign intelligence value or is necessary to prevent “serious harm” to others; information obtained about a U.S. person could not be used in any proceeding against him or her; and data collected could not be searched to identify U.S. persons unless necessary to prevent death or serious bodily harm, or based on a probable cause warrant that the person is planning or engaged in acts of international terrorism.

Photo courtesy of Flickr user Jonathan McIntosh

Non-U.S. persons would also see major privacy gains, including restrictions on the purpose for which surveillance may be conducted, as well as the extension of certain statutory protections. Though less robust, the reforms would provide significant additional oversight and privacy checks both before and after information could be gathered on international journalists.

• Stop undermining — and support — encryption standards, and promote increased adoption of encryption.

Edward Snowden was quoted in The New York Times last year as stating, “unencrypted journalist-source communication is unforgivably reckless.” Encryption is vital for journalists, as it represents the kind of preparedness that might even make the difference between freedom and incarceration, or life and death. Yet the NSA has engaged in efforts — reportedly ranging from bribery, to hacking, to the perversion of technical standards-setting processes — all to undermine encryption standards.

• Promote international norms that support the Internet rather than destroy it.

It is clear that the White House review group members recognize the turning point at which the world finds itself. Rather than allow the U.S. to hurtle toward global Hobbesian cyber-anarchy, the review group recommends the U.S. lead by moral example.

The most important of its recommendations include a policy of addressing, not exploiting, so-called “Zero-Day,” or undiscovered, vulnerabilities, other than in rare circumstances subject to high-level, interagency review. Secure, reliable digital tools are necessary if journalists are to do their jobs, which necessarily includes handling sensitive information.

Additionally, as CPJ has documented, and as the review group notes, efforts to place Internet resources under localized government control threaten the open nature of the Internet itself. This openness is vital to the free flow of journalism and other information; once lost, it may be irretrievable.

In October, CPJ issued a special report on press freedom in the U.S. — the first such report in our 33-year history — which found Obama’s record on press freedom to be dismal. If he is concerned about his legacy as he puts the finishing touches on Friday’s remarks, perhaps he will be mindful of the words of his one-time colleague, Geoffrey R. Stone, who hired a young Obama to teach constitutional law at the University of Chicago. As Professor Stone, one of the White House review group members, wrote in his 2004 book chronicling more than 200 years of free speech in wartime,

It is, of course, much easier to look back on past crises and find our predecessors wanting than to make wise judgments when we ourselves are in the eye of the storm. But that challenge now falls to this generation of Americans … As Justice Louis Brandeis explained in 1927, “Those who won our independence … knew that … fear breeds repression” and that “courage is the secret of liberty.” Those are the two most central lessons for Americans to bear in mind.

This is a moment that calls for such courage.

Geoffrey King coordinates the Committee to Protect Journalists’ Internet and technology policy efforts. King, who is based in San Francisco, protects the rights of journalists through advocacy, public education, and engagement with policymakers worldwide. Prior to joining CPJ, King, an attorney by training, represented U.S.-based individuals in constitutional matters involving the freedoms of speech, press, and petition. King is also a documentary photographer whose work has focused on human rights and social movements. In addition to his work as an advocate and journalist, King teaches courses at UC Berkeley on digital privacy law and policy, as well as the intersection of media and social change. King holds a bachelor’s degree in Mass Communications, Phi Beta Kappa and with Highest Distinction, from UC Berkeley. He earned his law degree from Stanford Law School. His public GPG encryption key can be found here. Follow him on Twitter @CPJInternet.

A version of this post originally appeared on CPJ’s Internet Channel. The Committee to Protect Journalists is a New York-based, independent, non-profit organization that works to safeguard press freedom worldwide. You can learn more at CPJ.org or follow the CPJ on Twitter @pressfreedom or on Facebook here.