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
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
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
- 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.
- 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
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.
- 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
- 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 the perversion
of technical standards-setting processes--all to undermine encryption standards.
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
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
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.