One Small Step for the Fourth Amendment

Last week, Barack Obama delivered a speech announcing some reforms in response to Edward Snowden's revelations about the National Security Agency. As with most aspects of Obama's record on civil liberties, my response is inevitably mixed. The outlined reforms would certainly constitute a real improvement over the status quo, but they are also too narrow and limited. Some of these limitations reflect real political constraints, while others don't.

To start with the good news first, Obama has announced that some checks and balances will be restored to the NSA's inquiries under Section 215 of the Patriot Act. Under current practices, the NSA doesn't need to get judicial approval to query the database of metadata it collects; it can simply make queries if it makes a self-determination that the query was "reasonable." This self-enforced reasonableness standard is functionally indistinguishable from having no standard at all. Obama announced that he was ending this practice: the database can now only "be queried only after a judicial finding" by the Foreign Intelligence Surveillance Court (FISC) "or in a true emergency."

This is a real improvement. Granted, FISC rarely rejects the NSA's serach requests. But what's important is not just the number of requests denied but the number of requests not made because of the requirement to get judicial approval. The latter number is unknowable, but assuming that it is (like the number of rejected searches) non-zero the only question is the magnitude of the improvement. And the new requirement for judicial approval was accompanied by another change for the better. "Effective immediately," Obama said, "we will only pursue phone calls that are two steps removed from a number associated with a terrorist organization instead of three." This is hardly earth-shattering reform, but it's an improvement that will increase privacy on balance.

Obama announced some more ambitious reforms, but since they require the approval of Congress the question of how to evaluate them is more complicated. Obama announced a desire to transition to a system in which the government wouldn't hold metadata itself:

 

I have instructed the intelligence community and Attorney General to use this transition period to develop options for a new approach that can match the capabilities and fill the gaps that the Section 215 program was designed to address without the government holding this meta-data. They will report back to me with options for alternative approaches before the program comes up for reauthorization on March 28. During this period, I will consult with the relevant committees in Congress to seek their views, and then seek congressional authorization for the new program as needed.

As Charlie Savage of the New York Times observes, this goal is likely to go the way of Obama's pledge to close the prison at Guantánamo Bay: "In both cases, [Obama] has directed the government to do something, without providing a path to for how to accomplish it." The strong likelihood that these proposed changes will prove to be stillborn in Congress is not, of course, Obama's fault or something that can be changed by a speech. This situation simply reflects a major problem with American politics: the branch that is most able to check overreach in the exercise of the executive branch's war powers has generally shown no inclination to do so. Perhaps some of the congressional Republicans who occasionally talk a good game about reforming the NSA will be part of a legislative coalition to change the system more fundamentally, but I'll believe it when I see it.

On another issue, the issuance of national security letters that allow for the secret collection of a wide variety of private information about suspects without judicial review, Obama's proposals were inadequate. Obama argued that judicial should review should be required to keep them secret after the fact, but not to issue them. Granted, even this modest reform is unlikely to be passed as a modification of the Patriot Act by Congress. But Obama is under no obligation to use all of the powers authorized by Congress. Until some form of meaningful oversight is established, it's hard to see why the executive branch shouldn't get a search warrant if it wants to compile the private information of individuals.

The bigger issue is that the proposed reforms deal with only a small slice of the security concerns raised by the contemporary practices of the NSA. Ben Fung of the Washington Post lists the various forms of surveillance in the "war on terror" that the speech didn't specifically address at all—most importantly the controversial PRISM program. Obama also assumed that metadata provides a valuable law enforcement function that should be weighed against privacy rights despite the paucity of evidence that the program has even been effective in fighting terrorism. And despite the president's implicit assurances, the privacy risks of metadata collection are substantial.

At one point in the speech, Obama argued that everyone involved was concerned with privacy: "the folks at NSA and other intelligence agencies are our neighbors and our friends. They have electronic bank and medical records like everyone else." But even leaving aside the bad apples that will inevitably abuse broad powers, this isn't terribly reassuring. History provides many examples of ordinary, decent, well-intentioned people in positions of power placing too little weight on the privacy rights of others and convincing themselves that noble-sounding ends justify means that conflict with other principles. Even our friends and neighbors require much more oversight when they're given the surveillance powers afforded by modern technology. Obama's speech is a step in the right direction, but far more is necessary to make the federal government's anti-terror efforts consistent with the principles embedded in the Bill of Rights.

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