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The President's Surveillance Reform Initiatives: A Section-by-Section Analysis

Robert Chesney
Friday, August 9, 2013, 5:46 PM
During his press conference today (transcript here), President Obama announced a quartet of reform initiatives meant to enhance the credibility and legitimacy of NSA activities and the FISA system, both of which have come under heavy pressure thanks to the Snowden revelations and their aftermath.  Here’s a rough section-by-section analysis of what he said: 1.

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During his press conference today (transcript here), President Obama announced a quartet of reform initiatives meant to enhance the credibility and legitimacy of NSA activities and the FISA system, both of which have come under heavy pressure thanks to the Snowden revelations and their aftermath.  Here’s a rough section-by-section analysis of what he said:
1. Enhanced Legitimacy for Section 215 collection (telecommunications metadata)
The President said:
First, I will work with Congress to pursue appropriate reforms to Section 215 of the Patriot Act, the program that collects telephone records. As I’ve said, this program is an important tool in our effort to disrupt terrorist plots, and it does not allow the government to listen to any phone calls without a warrant. But given the scale of this program, I understand the concerns of those who would worry that it could be subject to abuse.
So after having a dialogue with members of Congress and civil libertarians, I believe that there are steps we can take to give the American people additional confidence that there are additional safeguards against abuse. For instance, we can take steps to put in place greater oversight, greater transparency and constraints on the use of this authority.
What he might mean:

Well, that is very hard to say.  This one was kept a very high level of generality.  I note that he did not suggest that he would support abandoning metadata collection, nor cutting it back to an individualized, per-target process in contrast to mass pre-collection.  The emphasis, instead, seems to be on increased legitimacy through additional safeguards.

2. Adding adversariality to the FISC process
The President said:
[T]o build greater confidence, I think we should consider some additional changes to the FISC. One of the concerns that people raise is that a judge reviewing a request from the government to conduct programmatic surveillance only hears one side of the story, may tilt it too far in favor of security, may not pay enough attention to liberty. … I think we can provide greater assurances that the court is looking at these issues from both perspectives -- security and privacy. So specifically, we can take steps to make sure civil liberties concerns have an independent voice, in appropriate cases, by ensuring that the government’s position is challenged by an adversary.
What he might mean:

This almost certainly refers to the idea of adding a “special advocate” or “guardian ad litem” to the FISC process.  That is, a security-cleared attorney would be appointed to contest the government’s position before the FISC.  This almost certainly would not be done across the board, but rather would involve appointment at the FISC’s discretion in limited circumstances, probably those involving novel issues of constitutional or statutory interpretation.  I confess I like this idea very much, particularly if it is done in a manner that empowers the advocate to lodge appeals with the Foreign Intelligence Surveillance Court of Review and, when necessary, to seek certiorari at the Supreme Court.  Key moving parts will include: (i) selecting the corps of potential appointees (for example, should DOJ have exclusive authority to identify these people?  Should that authority be lodged in part or even in whole in some other entity?); (ii) determining who decides when an appointment is needed (I assume the FISC would have that decision, but perhaps not?); and (ii) defining the circumstances when the appointment can be made (I like the general idea of limiting this to novel legal interpretation scenarios, but of course that is easy to say at a high-level of generality but harder to apply in actual cases, particularly where the novelty lies entirely in the fact that NSA has come up with some nifty technology).

3. Miscellaneous transparency steps
The President said:
We’ve already declassified unprecedented information about the NSA, but we can go further. So at my direction, the Department of Justice will make public the legal rationale for the government’s collection activities under Section 215 of the Patriot Act. The NSA is taking steps to put in place a full-time civil liberties and privacy officer and release information that details its mission, authorities and oversight. And finally, the intelligence community is creating a website that will serve as a hub for further transparency.
What he might mean:

First, we know what he meant regarding the legal rationale: This “white paper” was released just now, providing the legal analysis behind the metadata collection program.  The key passage, from the executive summary, states:

Multiple FISC judges have found that Section 215 authorizes the collection of telephony metadata in bulk. Section 215 permits the FBI to seek a court order directing a business or other entity to produce records or documents when there are reasonable grounds to believe that the information sought is relevant to an authorized investigation of international terrorism. Courts have held in the analogous contexts of civil discovery and criminal and administrative investigations that “relevance” is a broad standard that permits discovery of large volumes of data in circumstances where doing so is necessary to identify much smaller amounts of information within that data that directly bears on the matter being investigated. Although broad in scope, the telephony metadata collection program meets the “relevance” standard of Section215 because there are “reasonable grounds to believe” that this category of data, when queried and analyzed consistent with the Court-approved standards, will produce information pertinent to FBI investigations of international terrorism, and because certain analytic tools used to accomplish this objective require the collection and storage of a large volume of telephony metadata. This does not mean that Section 215 authorizes the collection and storage of all types of information in bulk: the relevance of any particular data to investigations of international terrorism depends on all the facts and circumstances. For example, communications metadata is different from many other kinds of records because it is inter-connected and the connections between individual data points, which can be reliably identified only through analysis of a large volume of data, are particularly important to a broad range of investigations of international terrorism. 

Moreover, information concerning the use of Section 215 to collect telephony metadata in bulk was made available to all Members of Congress, and Congress reauthorized Section 215 without change after this information was provided. It is significant to the legal analysis of the statute that Congress was on notice of this activity and of the source of its legal authority when the statute was reauthorized.  [emphasis added]

 The telephony metadata collection program also complies with the Constitution. Supreme Court precedent makes clear that participants in telephone calls lack a reasonable expectation of privacy for purposes of the Fourth Amendment in the telephone numbers used to make and receive their calls. Moreover, particularly given the Court-imposed restrictions on accessing and disseminating the data, any arguable privacy intrusion arising from the collection of telephony metadata would be outweighed by the public interest in identifying suspected terrorist operatives and thwarting terrorist plots, rendering the program reasonable within the meaning of the Fourth Amendment. Likewise, the program does not violate the First Amendment, particularly given that the telephony metadata is collected to serve as an investigative tool in authorized investigations of international terrorism.

Two quick points.  First, the point about Congress being on notice and yet reauthorizing section 215 as is, is very important and interesting.  I've not yet had the chance to read the full white paper, and don't know if the idea is that, literally, all member of Congress knew of the mass-collection/database-formation understanding of "relevance."  If so, this is a powerful point.  If not--if only SSCI and HPSCI members knew, for example--then of course it loses force. Second, note that the speech did not call for disclosure of redacted portions of the FISC opinions themselves.  It would be very good to know if the FISC simply adopted the reasoning stated here, or if instead it differed, as it is the FISC's view that seems most important here at the end of the day.  It may be that the full white paper makes this clear, of course.

Now, back to the speech: Second, there is the stuff about an IC website on transparency and a new CL/PO officer at NSA.  The former could be convenient, at least (here is the document NSA just released, acting as a sort of roadmap to its authorities).  The effect of the latter (a CL/PO officer) will depend on what authorities that office may have.  Perhaps it will have a significant checking effect ala a statutory IG.  Perhaps it will be merely window-dressing.  Time will tell, maybe!

4. Task Force time!
The President said:
Fourth, we’re forming a high level group of outside experts to review our entire intelligence and communications technologies. … I’m tasking this independent group to step back and review our capabilities, particularly our surveillance technologies, and they’ll consider how we can maintain the trust of the people, how we can make sure that there absolutely is no abuse in terms of how these surveillance technologies are used, ask how surveillance impacts our foreign policy, particularly in an age when more and more information is becoming public. And they will provide an interim report in 60 days and a final report by the end of this year, so that we can move forward with a better understanding of how these programs impact our security, our privacy and our foreign policy.
What he might mean:

It’s easy to make fun of these sorts of blue-ribbon panel solutions.   Insert joke here.  That said, it sounds useful to me, if only as a mechanism to concentrate the issues, provide a focal point for debate, etc.   I don’t have unrealistic expectations, to be sure.

 So what was most important in the prepared statement?

I would say the expression of support for adding adversariality to the FISC process in some cases is, by far, the biggest news here.

 And did anything important happen during the Q&A after the speech?

Here are some passages I liked quite a bit.  The President said:

…if you look at the reports, even the disclosures that Mr. Snowden's put forward, all the stories that have been written, what you're not reading about is the government actually abusing these programs and, you know, listening in on people's phone calls or inappropriately reading people's emails. What you're hearing about is the prospect that these could be abused. Now part of the reason they're not abused is because they're -- these checks are in place, and those abuses would be against the law and would be against the orders of the FISC. Having said that, though, if you are outside of the intelligence community, if you are the ordinary person and you start seeing a bunch of headlines saying, U.S., Big Brother, looking down on you, collecting telephone records, et cetera, well, understandably people would be concerned. I would be too if I wasn't inside the government. And so in light of the changed environment where a whole set of questions have been raised -- some in the most sensationalized manner possible, where these leaks are released drip by drip, you know, one a week to kind of maximize attention and see if, you know, they can catch us at some imprecision on something -- in light of that, it makes for us to go ahead, lay out what exactly we're doing, have a discussion with Congress, have a discussion with industry, which is also impacted by this, have a discussion with the civil libertarians and see, can we do this better?

I think that nicely captures it:  on one hand, one of the most important but little-remarked elements from the raft of disclosures this summer is the fact that there do not seem to be any stories of actual misuse of the authorities, but on the other hand the fact is that the scale of the collection is unsettling in-and-of-itself and this has been a serious wake-up call both to ensure people understand that these capabilities are in use and to see if they can be better calibrated.

What else?  The president said:

…as technology develops further, technology itself may provide us some additional safeguards. So for example, if people don't have confidence that the law, the checks and balances of the court and Congress, are sufficient to give us confidence that government's not snooping, well, maybe we can embed technologies in there that prevent the snooping regardless of what government wants to do. I mean, there may be some technological fixes that provide another layer of assurance.

Bingo.  This reminds me of what the Markle Foundation task force has been arguing for years about embedding safeguards into the technology.  This can and should speak to concerns about abuse; of course, it is little comfort to those who object to the government having this information period.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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