NSA spying reforms from Obama have been put on hold this week. Several of his key points of surveillance proposals could face complications that could affect their lawfulness and impede movement through Congress. Even though Obama’s plan is to shift the storage of American’s phone records from the National Security Agency elsewhere, telecommunications companies state they do not want to take on the responsibility. Furthermore, the federal government could face privacy obstacles for relying on other agencies to store the meta-data.
While the Obama Administration seeks to cure the alleged privacy infractions its spying program has caused, legal analysts are questioning the forthrightness to its obligation. Anthony Romero, executive director of the American Civil Liberties Union (ACLU) stated his opinion after the announcement.
“The devil is in the details of how the government collects and retains phone records,” Romero said, “I think we’re going to see pretty quickly the lack specificity behind some of the President’s promises.”
Constitutional scholars are also inquiring over the President’s commitment to creating an advisory board of privacy experts to intervene in the proceedings of the secretive Foreign Intelligence Surveillance Court (FISA). The FISA Court currently oversees the data mining operation of the NSA in its mission to collect telecommunications meta-data. The Obama Administration has motioned to Congress for the creation of an advisory board; however, some federal judges oppose this measure. Civil Libertarians and groups like the ACLU have called for a defense on the merits when the government forwards a case to federal judges when examining a person’s phone data.
Privacy advocates have also questioned the administration’s silence in what will come of the hundreds of millions of phone records it has already collected. “There was nothing in the President’s speech about what’s already in the government’s hands,” Romero said.
The Review Group on Intelligence and Communications Technologies, Obama’s task force, has recommended lessening the duration for which the NSA can retain American’s private phones record from five years down to two years. Although this seems to be good news for privacy advocates, Obama’s proposals in the last few days have done little to address the time duration issues. For now, the telecommunications records in the hands of the federal government will stay under NSA control and Obama’s spying reforms will remain on hold.
So, will these changes happen immediately? The short answer is no. To digress from the current legislation and executive policy on the collection and retention of telecommunications meta-data it will take an act of Congress to alter the Patriot Act. To move this along will take Congress time to draft, debate, and pass legislation. More changes will have to be made after the administration resolves logistics concerns. As well, Obama has ordered the Justice Department to devise a plan over the next two months to clear legal obstacles. Therefore, to implement new privacy protections, it will take time.
Another inquiry being posed is whether these new implementations by Obama make it harder to track terrorist activity, both foreign and domestic. Leaders of the intelligence community have argued against the digression from collecting data. They say that the current legislation has helped alleviate terrorism from the homeland. The President’s advisory board, however, has cast much doubt over that which led to the recommendation to the NSA to cease their actions in collecting the phones records of Americans.
The recommendation stemmed from information that revealed the NSA’s meta-data collection has little to no effect in preventing attacks and could have been obtained through better, more conventional methods. Many from the political right state that the Obama Administration’s tactics in battling terrorism go far beyond the jurisprudence set by the Patriot Act signed into law during the Bush Administration.
Some say Obama’s new requirement to have a federal judge’s approval before interfering with phone databases will only slow investigations. Corporations are also wary to the new requirements that they must standardize their data collection to fit the NSA’s needs. Legal experts also state that hiring a private collection business for the meta-data poses many legal hurdles. Forming a quasi-private company along lines of Fannie Mae or Freddie Mac for the government-sponsored mortgage enterprise poses a bureaucratic brick wall to the needs and wants from civil Libertarians. Doing this may also not quell public mistrust that has been at the forefront and underlying cause of the NSA changes.
Passing constitutional scrutiny and earning the trust of American corporations are not the only hurdles Obama’s proposals must pass. “Unless this is very carefully drafted, the public is going to pick this apart from Day One,” said national security law expert, Stewart Baker. Public distrust of this program is embedded in the growing number of Tea Party and civil libertarian Americans. Congress’ ongoing lack of political movement may threaten the chances for a quick passage of Obama’s recommendations. The 2014 midterm elections could also add to the quagmire of compromise. Thus, Obama’s NSA spying reforms may stay on hold for longer than expected.
By: Alex Lemieux
The Norman Transcript