Those NSA 'reforms' in full: El Reg translates US Prez Obama's pledges

Filleting fact from fiction


Too long, didn't watch: Trust us, we're the NSA

I maintained a healthy skepticism toward our surveillance programs after I became President. I ordered that our programs be reviewed by my national security team and our lawyers, and in some cases I ordered changes in how we did business. We increased oversight and auditing, including new structures aimed at compliance. Improved rules were proposed by the government and approved by the Foreign Intelligence Surveillance Court. And we sought to keep Congress continually updated on these activities.

There have been some improvements made in this area, but, as the Snowden documents have shown, the NSA and others have been equally adept at finding out new ways to get around them. Documents declassified by the Foreign Intelligence Surveillance Court show even the judges involved felt the NSA was lying to them and prevaricating.

As for keeping Congress informed, the US Director of National Intelligence James Clapper was caught out lying to his Congressional overlords in a pretty barefaced manner. Senator Ron Wyden asked Clapper whether or not the NSA is collecting data on US citizens – a question he had given to Clapper 24 hours before so that he could consider his reply.

Clapper response was a simple "No," and it was only after the existence of the mass-collection of phone metadata was revealed by whistleblower Edward Snowden months later that Clapper was forced to explain that is all depends on how you use the term "collect".

In an extraordinarily difficult job – one in which actions are second-guessed, success is unreported, and failure can be catastrophic – the men and women of the intelligence community, including the NSA, consistently follow protocols designed to protect the privacy of ordinary people. They're not abusing authorities in order to listen to your private phone calls or read your emails.

That last sentence is factually untrue. NSA inspector general Dr. George Ellard reports that some agents routinely abused their surveillance capabilities; going as far as to use government data to spy on people they were interested in wooing – so-called "loveint".

Examples of this include eavesdropping on phones of potential paramours or checking into their communications background before going on a date. General Alexander has confirmed this, but says it only happens once a year on average.

The NSA has also refused to deny that it is using its surveillance powers on member of Congress charged with overseeing the agency. Such monitoring has happened before, and many are worried that it's also happening now. When Obama was a senator, his communications were under NSA surveillance, according to one agency whistleblower.

Reasons for change

I indicated in a speech at the National Defense University last May that we needed a more robust public discussion about the balance between security and liberty. Of course, what I did not know at the time is that within weeks of my speech, an avalanche of unauthorized disclosures would spark controversies at home and abroad that have continued to this day.

Take a look at that speech from last year, just before the Snowden leaks started appearing. In more than 6,000 words, the President devotes just two short paragraphs to the topic of domestic surveillance: he said the US would have to "keep working hard to strike the appropriate balance between our need for security and preserving those freedoms that make us who we are. That means reviewing the authorities of law enforcement, so we can intercept new types of communication, but also build in privacy protections to prevent abuse."

Thus, we argue that today's NSA "reforms" are not the result of a speech given nearly a year ago – but instead triggered by the bespectacled elephant in the room who made the activities of the US and UK spying agencies public since June.

I'm not going to dwell on Mr Snowden's actions or his motivations; I will say that our nation's defense depends in part on the fidelity of those entrusted with our nation's secrets. If any individual who objects to government policy can take it into their own hands to publicly disclose classified information, then we will not be able to keep our people safe, or conduct foreign policy. Moreover, the sensational way in which these disclosures have come out has often shed more heat than light, while revealing methods to our adversaries that could impact our operations in ways that we may not fully understand for years to come.

Ex-NSA contractor Snowden has stated that he undertook his decision to go public, and to leak a trove of Uncle Sam's spying documents, because he had no other choice: his attempts to raise concerns about the surveillance programs through the usual official channels had been ignored, it's claimed. Based on the experience of other NSA whistleblowers, fleeing to Hong Kong (and then Russia) with the evidence he needed wasn't such a bad idea.

Take, for example, the case of William Binney, a 30-year NSA veteran who rose to the rank of Technical Director. In 2002, Binney and two associates played it by the book and complained through formal channels that the NSA's activities were unconstitutional. As a result he was arrested at gunpoint, had his business shut down, and was only cleared of wrongdoing after a five-year legal battle.

Snowden's not an idiot. He gave up a six-figure salary, a girlfriend, and a posting in the not-unpleasant surroundings of Hawaii to right what he sees are wrongs being committed by his former employers. The documents that have been published under Snowden's guidance have been carefully redacted, and most (although by no means all) have avoided revealing specific activities against direct enemies of the US.

Given the unique power of the state, it is not enough for leaders to say: Trust us, we won't abuse the data we collect. For history has too many examples when that trust has been breached. Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power; it depends on the law to constrain those in power.

This is Snowden's point, and one that the rest of the world seems to be coming around to. The defense of civil liberties depends on the rule of law, and Snowden and others contend that this hasn't been the case of late.

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