Tonight President Obama has another opportunity to redirect the country's out-of-control surveillance programs during his annual State of the Union address. He should seize it. The president's much-anticipated January 17 speech about U.S. surveillance policy, which came in response to outrage over National Security Agency spying, left much unsaid--and many of the commitments he did make were lacking the clarity needed to lift the chill on journalism and other forms of free expression that such programs create.
In one recent illustrative development, the U.S. Privacy and Civil Liberties Oversight Board (PCLOB) issued its first substantive report since the watchdog was established in 2007. Released less than a week after Obama's speech, the report slams the NSA bulk telephone records program as "not sustainable from a legal or policy perspective." The report illuminates the growing gap on surveillance policy between the White House and the American public, members of the judiciary and of Congress, technology companies, security experts, the president's own intelligence policy review group, and even the Republican National Committee.
The directness of the PCLOB report, which focuses exclusively on the NSA's mass collection of telephony metadata, is striking when compared to more modest reforms proposed by Obama:
As outlined in this Report, the program lacks a viable legal foundation under Section 215, implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value. For these reasons, the government should end the program.
This disconnect has become a recurring theme in Obama's handling of the six-month-old spy scandal. Although reform faces political challenges, the president has yet to articulate a clear, comprehensive vision that addresses some of the most serious concerns raised by observers within and without the government.
To be sure, the president has committed to several substantive reforms. Yesterday, the U.S. Justice Department and a number of major information and communications technology companies announced an agreement that would allow more detailed reporting of the government's secret data requests. And in his speech and an accompanying policy directive, Obama vowed to curtail bulk telephony metadata surveillance, generally increase transparency around spy policies, and make other tweaks important to restoring faith in America's expansive intelligence apparatus.
Nonetheless, as the PCLOB report shows, Obama must work more decisively to repair the public's trust. Although the reforms the president announced last week constitute an important first step, as cybersecurity expert Fred H. Cate put it in an interview with The New York Times, the president "took a report [from his own policy review group] that had 46 recommendations, and touched on three or four of them."
Of the suggested reforms the president ignored, many are crucial to newsgathering in the digital age, as CPJ outlined in a recent blog post. Among the most fundamental questions are whether the U.S. government will continue to stockpile so-called "zero-day" vulnerability exploits, as well as whether the NSA will continue to undermine encryption standards. The persistence of security loopholes and the sabotage of encryption subvert the privacy of all Internet communications, including but not limited to those the NSA chooses to target. Equally important, the president did not promise wholesale changes to the NSA's omnipresent (if not omniscient) data vacuum, the pervasiveness of which seriously harms freedom of the press.
Without meaningful reform in these areas, among others, Obama threatens the foundational principles of journalism in the United States and abroad. Journalists, sources, human rights advocates, and ordinary citizens rely upon and deserve secure online communications as a vehicle to seek the truth, as well as for basic communication. While the president eschews decision-making on the vast majority of the issues before him, the free flow of information between the press and the public will suffer.