Three takeaways from President Obama’s speech on surveillance: (1) Unexamined expansion of NSA programs has been halted, at least for now. (2) The president favors reform of existing programs, not eliminating them. (3) There’s a heck of a fight ahead in Congress to find a proper balance between security and privacy.
The first point may be the most important. The debate over government surveillance and the public’s reaction — too much spying, not enough oversight — is a healthy sign that Americans value their civil liberties and want to place limits on intrusion by an unchecked bureaucracy. The point of the president’s speech on Friday was to say: Message received.
In the panic after 9/11, the warnings of civil libertarians that privacy rights were being trampled fell on deaf ears in Washington. The excesses of the Patriot Act, including so-called National Security Letters that demand that information be turned over without a subpoena —which the Herald opposes — were enacted into law. Some provisions have been used to justify some of the most worrisome disclosures about government spying, including the wholesale collection of individual phone records and emails.
Still, as the saying goes, just because you’re paranoid doesn’t mean they’re not out to get you. Can anyone possibly doubt that America remains the No. 1 target of terrorist movements around the world? The extraordinary security programs put in place after Sept. 11, 2001, were a response to an extraordinary threat, and that threat remains operative.
With all this in mind, Mr. Obama tried to split the baby in half, retaining the post-9/11 programs but ordering greater oversight and scrutiny.
He would keep the metadata, but, in the long run, it should be stored by private companies, like telecommunications firms. Analysts who want to check phone records will require permission from the federal surveillance court in each instance. The FISA court should disclose decisions affecting privacy rights.
These are all sensible changes, as is the promise that the phones of allied leaders won’t be tapped — although we’d feel more sanguine if foreign leaders offered reciprocal promises to rein in their own cyber-snoops, both government and freelance. [The recent hacking of Target that may have affected more than 100 million Americans has been traced to a super-hacker in St. Petersburg, Russia. We don’t hear an outraged Mr. Putin vowing to put a stop to it.]
Ultimately, Congress will have to decide how much intrusion is too much and enact reforms rather than allow this president to impose rules that he or a successor can later quietly roll back.
It will have to formulate rules for safeguarding phone records to be kept by the private sector.
It should also work up guidelines to govern when and how phone records can be opened to examine the content, rather than leaving this up to presidential fiat.
The president wants nongovernment attorneys to participate in the debate over “significant” cases before the FISA court. Which attorneys? Who selects them? Who decides what is “significant?” Congress must weigh in.
Expect pushback from the national-security bureaucracy. The NSA wants to keep its phone records. One FISA court judge has already declared that privacy advocates aren’t wanted or needed in the court’s secret debates. Government investigators hate the idea of requiring case-by-case warrants to eavesdrop on phone content.
The ball is in Congress’ court.