President Obama last week made welcome promises to bring transparency into the NSA’s cyber-surveillance programs. What he failed to do, however, is promise to actually stop the NSA from snooping.
At times, it seemed that former constitutional law professor Barack Obama, champion of civil liberties, was engaged in a debate, right there on the White House podium, with President Obama, commander-in-chief and overseer of a vast security system with a wide reach into the private communications of Americans.
On the one hand, Mr. Obama expressed sympathy with Americans who fear “U.S.-Big Brother looking down on you, collecting telephone records, et cetera.”
He proposed four initiatives to placate critics of the National Security Agency’s extensive communications intercept programs.
First, he said, he would pursue undefined “reforms” to Section 215 of the Patriot Act, which collects telephone records. He also promised to authorize a civil-liberties advocate before the secret court that approves warrants for intrusive actions; disclosed that NSA is creating a civil-liberties office; and said he would create a blue-ribbon panel to examine “our entire intelligence and communication technologies.”
All of these are good ideas.
But there was precious little indication of real and effective change in the programs that have raised all the privacy concerns. Facing a challenging question, Mr. Obama suddenly switched to his commander-in-chief hat:
“When I looked through specifically what was being done, my determination was that the two programs in particular that had been at issue, 215 and 702, offered valuable intelligence that helps us protect the American people, and they’re worth preserving,” he said.
Bottom line: Expect more transparency in the cyber-surveillance programs, but don’t expect any substantive changes.
Mr. Obama’s soothing words are not going to satisfy anyone who fears the reach of the government’s spying programs, nor should they.
The government wants the unqualified right to intercept all communications its computers can snare and examine all those believed to be suspicious — in secret, and apparently without regard to the Fourth Amendment’s requirement of “probable cause.”
That’s the heart of the issue, and one Mr. Obama is apparently unwilling to touch. That leaves it up to Congress to go further.
One way would be to limit, or do away with altogether, the immunity that Congress itself granted to communications companies to protect them from lawsuits by consumers who wanted their privacy safeguarded.
The result is that these companies have no incentive to refuse to comply with any government order, even one that might violate privacy rights.
Changing that would give the companies a stake in preserving the privacy of the public, which might make the government think twice before demanding private information it may not be entitled to.
The events of 9/11 made Americans more conscious about the need for security and protection against terrorism. But the 9/11 Commission warned of the need to safeguard civil liberties while protecting the homeland.
“This shift of power and authority to the government calls for an enhanced system of checks and balances to protect the precious liberties that are vital to our way of life,” the commission declared.
Today, when Americans have learned a lot about the extent of cyber-surveillance of their private communications, the commission’s prescient warning is even more meaningful than it was a decade ago.