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Dissecting Obama’s Proposed NSA Reforms
So, after nine months of ignoring the Snowden revelations, downplaying the the Snowden revelations, not telling the truth about the Snowden revelations, insulting the Snowden revelations, sending members of his administration to lie to Congress about the Snowden revelations and claiming everything the NSA does is legal, righteous and necessary to keep the barbarians outside the gates, Obama is coincidentally now proposing some “reforms” without acknowledging the Snowden revelations. Let’s have a look based on what we know right now.
Starting with a Question
Right away we have a question about these proposals. Almost everything (we know) the NSA has been doing to us was imposed either by Executive Orders (Bush and Obama) not subject to Congressional review or approval, or done under wide, almost farcical interpretations of the Patriot Act (Section 215 especially) not subject to judicial review, or blessed in secret by the secret Foreign Intelligence Surveillance Court (FISA) court not subject to any review. So the question of why Obama’s proposed reforms are being sent to Congress for a vote looms large.
Why doesn’t the president just pull back what he and his predecessor rammed forward? Well, of course we know the answer: politics. If Congress approves, then the president can say that the task is done, the Constitution restored, let’s look forward again and not backward. If Congress does not vote for the reforms or changes them, well, anything from there forward is their fault. Neat. You’ll recall Obama played the same trick, albeit in a somewhat kludgy way, trying to throw the decision to bomb Syria into Congress’ fetid lap last September.
We also have a handy delay built into the proposal. The current spy programs technically expire March 28, but Obama is asking that good old Foreign Intelligence Surveillance Court to renew the program as it exists for at least one more 90-day cycle. So while the reforms are needed according to the president, there’s no real hurry and the NSA can keep on spying on us at least into the summer. With some irony, that additional 90 days brings us quite close to the anniversary of Snowden’s revelations last June.
The Reforms Proposed
Reform 1: The NSA, proposes Obama, would end its systematic collection of data about Americans’ calling habits. Well, sort of. First we all just have to trust that what the NSA has been and would have continued to do in secret if Snowden had slept in will just stop. There’s a whopper of a maybe, especially given that these changes come only after the whole evil mess hit the news. Better yet, just because the NSA may not collect data, someone else will, because…
Reform 2: The bulk records would stay in the hands of the phone companies, which would not be required to retain the data for any longer than they normally would. So the data still exists, just reshelved. Most phone companies hold such data anyway for 18 months, plenty of time for some leisurely snooping. And just because the phone companies are not required to hold the data longer, that does not mean some government agency which controls their contracts, licenses, technology and all that will not suggest they hang on to it longer. Hey Verizon, just buy a bigger hard drive, they’re cheap these days. Slap a non-disclosure type order on the phone companies and we’ll never know what they keep for how long. Again, this reform requires trusting organizations that lied to us consistently since 2001 until caught red-handed.
Reform 3: The NSA could only obtain specific records with permission from a judge. I think we all can see through this one like it was as sheer as a Miley Cyrus costume. Likely enter the handy FISA court again, which has a long record of rubber stamping government requests, no doubt in no small part because only the government is allowed to speak to the court (in its entire history, the FISA court denied just 11 of the more than 33,900 surveillance requests put to it.)
In addition, it is unclear what level of detail and introspection the court could apply to what no doubt will be hundreds of thousands of new requests, most of which will no doubt be marked as urgent in response to the endless parade of “imminent threats” only the NSA sees.
Sub-Reform: Obama will ask Congress to convene a panel of public advocates to represent “consumers” before the FISA court. Are Citizens now just “consumers” as far as the government is concerned?
The members of this panel, to be drawn from civil liberties, technology and privacy advocates, will be given security clearances and other benefits. Their job will be to represent Americans, but only when the FISA court faces “novel issues of law.” Left open is who these people will be, who will pay them, who will choose them, and how aggressive the government will be in using the security clearance process to keep true advocates away from the court. Who and how “novel issues of law” will be determined is another question. What rights these advocates will have to see government data is unclear. And of course everything will be secret.
Back to the court orders themselves. These court orders are lined up to be another forward-looking thing: once a phone company starts providing call data on an individual, they would be required, on a continuing basis, to feed the NSA data about any new calls placed or received after the order is received. For how long? Not mentioned in the proposal. Better classify that time period or you’ll alert the terrorists when they can start talking freely again. The court orders would also automatically give the NSA related records for callers up to two phone calls, or “hops,” removed from the number that has come under suspicion. So if they look at your records, they are also allowed to look at the doctor you call and the journalist you call.
Worse yet is the way math works with that two-hop rule. One writer has speculated that if one of those hops includes a popular take-out pizza joint, that hop will automatically link the NSA to a very, very large number of people. Other data suggests a typical two-hops set of links will pull in over 8,000 people. Reconfigure your two-hops to restart with one of those 8,000 and so forth until the set of permissible monitoring grows geometrically.
What’s Missing
The only category of people Obama has specifically exempted from surveillance is allied foreign leaders. He has not extended any exemptions to American citizens.
The reform proposals seem specific only to bulk phone records collected by the NSA under Section 215 of the Patriot Act. They do not appear to apply to any other collections by the NSA (email, Skype, chat, GPS, texts, and so on and on), or any other federal or state agency, or to any programs in place today that we are not aware of or which may be created in the future, perhaps in response to the reforms.
This omission is significant; The Guardian reports the NSA collects each day more than five million missed-call alerts, for use in contact-chaining analysis (working out someone’s social network from who they contact and when), details of 1.6 million border crossings a day, from network roaming alerts, more than 110,000 names, from electronic business cards, which also included the ability to extract and save images and over 800,000 financial transactions, either through text-to-text payments or linking credit cards to phone users. NSA also extracted geolocation data from more than 76,000 text messages a day, including from “requests by people for route info” and “setting up meetings.” Other travel information was obtained from itinerary texts sent by travel companies, even including cancellations and delays to travel plans.
The Obama reforms do not even mention surveillance of Internet communications internationally under Section 702 of the FISA Amendments Act; and surveillance of communications overseas under Executive Order 12333.
The reforms do not mention pulling back the NSA’s ongoing efforts to weaken overall internet security, such a demanding companies provide them with backdoors to bypass encryption.
The reforms leave the door open. Obama’s proposal includes a provision asking Congress to validate that Section 215 of the Patriot Act may in the future be legitimately interpreted as allowing bulk data collection of telephone data.
The reforms leave in place far too many secret court actions and loopholes.
The reforms will be changed in the Congressional process and are likely to be further weakened by frightened representatives terrified of being blamed for the next act of terror (or by fear of losing votes for appearing “weak.”)
The reforms, even if enacted exactly as proposed or even slightly strengthened, only alter the security state in some minor and superficial ways. Our Fourth Amendment rights against unwarranted search and seizure remain jackbooted.
Some might even say the reforms are not reforms at all, but just some pretty words like “Hope” and “Change” that a smart politician might toss off to appear to be listening to his People without doing anything of substance.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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Rich Bauer said...
1“The only category of people Obama has specifically exempted from surveillance is allied foreign leaders. He has not extended any exemptions to American citizens ”
FU USA! FU USA!
03/28/14 1:02 PM | Comment Link
pitchfork said...
2“Some might even say the reforms are not reforms at all, but just some pretty words like “Hope” and “Change” that a smart politician might toss off to appear to be listening to his People without doing anything of substance.”
Reforms. right…
BWHAHAHAHAH…HOHOHOHOHOHOHOHO…HEHEHEHEHE…HAHAHAHAHAHAHAHAHA!
Someone help me off the floor.
Meanwhile the DCOTP(tm)breaths a collective sigh of relief believing our benevolent USG has come to it’s senses and can now concentrate on Kardashians ass once more. Meanwhile the Surveillance State shell game continues unabated and growing exponentially. Senator Church must be hanging his head in utter disbelief, the Framers notwithstanding. I think we should hold a nation wide funeral for the Constitution on July 4th. America has died.
03/28/14 1:26 PM | Comment Link
Dissecting Obama’s Proposed NSA Reforms | Beat the rich said...
3[…] …read more […]
03/28/14 2:38 PM | Comment Link
Change The Constituion said...
4It is obvious that the executive branch is far more powerfull than originally intended. The constituion needs to be changed to rein in the cowboy mentality that tends to dominate the executive branch.
03/28/14 3:11 PM | Comment Link
meloveconsullongtime said...
5Well, Peter, although you’ve done a good job dissecting these proposed “reforms”, still what you end up with is what you’ve indicated at your conclusion, but perhaps I can write it even more clearly:
Given that these (PROPOSED!) “reforms” would be adjustments of an ALREADY ILLEGAL system – not even of a body of laws, but of a behemoth bureaucracy already operating entirely outside the rule of law – these proposed “reforms” have no more significance, let alone any potential real effect, than any of the myriad “reforms” ever proposed by Leonid Brezhnev during the preliminary death rattles of the Soviet Communist Party.
The present American Empire and its behemoth bureaucracies cannot be reformed through appearances of legislative adjustments, because they already operate outside the rule of law. They are even more lawless than the USSR was in its final years.
03/28/14 3:55 PM | Comment Link
Rich Bauer said...
6Reform # 6 – All surveillance of Americans should be moved to the FBI because they are a trusted agency that never violates the law…as they see it.
What could go wrong?
03/28/14 4:10 PM | Comment Link
Rich Bauer said...
7http://www.boston.com/news/local/massachusetts/2014/03/28/dzhokhar-tsarnaev-lawyers-say-fbi-tried-make-tamerlan-informant/9sYwyTPPvWZOcZ4dZRZKMK/story.html
03/28/14 11:35 PM | Comment Link
Rich Bauer said...
8http://www.thedailybeast.com/articles/2011/08/11/september-11th-anniversary-richard-clarke-s-explosive-cia-cover-up-charge.html
03/28/14 11:38 PM | Comment Link
meloveconsullongtime said...
9I don’t understand. Why does the FBI go out of its way to murder Tsarnaev while it simultaneously covers up for the Russian mistress – now living in America – of a supporter of the late Chechen terrorist Shamil Basayev?
03/29/14 6:21 AM | Comment Link
teri said...
10Well, to answer one question; yes, citizens are just consumers now. What do you think Obamacare is?
Every time Oblahblah speaks, I think of this 3-minute video (“Bad Lip-reading: Trick the Bridesmaid”), which everyone here has probably already seen, but hey, always worth another watch for the giggles. Everything he says may as well be this gobblety-gook.
http://www.youtube.com/watch?v=ehYoIKTsiV0
03/29/14 8:47 AM | Comment Link
pitchfork said...
11melove said..”I don’t understand.”
Says the sly ole fox. Neat. I see what you did there. Meanwhile the FBI murders
03/29/14 1:45 PM | Comment Link
pitchfork said...
12damn..I’d kill for an edit button. No time to finish now.. 🙁
03/29/14 1:45 PM | Comment Link
jim hruska said...
13PVB,
There’s a key point missed in this essay/blog entry.
The key is the 4th Amendment,so we should consider the bleed over effect on our domestic law enforcement and prosecution of those accused of US code violations.
A few things pop to mind. These are:
-Will the IRS get this data to enforce tax code?
-will DEA get data to fight the war on drugs?
-will prosecutors use data obtained thru back door channels? Same for the FBI and Secret Service and Marshalls Service.
There are minor buzzings that DEA is doing this now. I believe there was a drug related trial in Chicago Fed Crt District in which the defense alleged this point , and the Judge ruled against disclosure of this data to the defense.
This is an enormous question as any ordinary citizen, to include criminals, do not have the financial resources to oppose a security state.
It’s a small step from here to there.
A very small step.
jim hruska
03/29/14 3:07 PM | Comment Link
wemeantwell said...
14Here to there… we’re already mostly there, but it has been a boiling frogs thing, slow enough that most people haven’t noticed it yet. You touch on the hidden story of the NSA revelations, what is being done with all that data. So far the media has been focusing in the “what” and not the “why.”
It’ll all be clearer soon I fear.
03/29/14 3:20 PM | Comment Link
jim hruska said...
15PVB,
I’d like to make one further point that you touched upon.
The myth and propaganda of the PWOT is that invasions by GWB kept us safe , and now that has morphed to Obama does this with drones.
So , fast forward to 2016 and i predict this NSA program won’t even be discussed or mentioned by either party. We’ll continue to dance while the ship is sinking.
Our elections are as comedic as those we imposed on IRAQ and AFGH.
What does a citizenry do when the choice is between 2 parties that are flip sides of the same coin?
jim at rangeraggainstwar
03/29/14 3:14 PM | Comment Link
Rich Bauer said...
16“What does a citizenry do when the choice is between 2 parties that are flip sides of the same coin?”
Peter Van Buren – 2016
03/29/14 4:23 PM | Comment Link
Kyzl Orda said...
17” Rich Bauer said…
http://www.thedailybeast.com/articles/2011/08/11/september-11th-anniversary-richard-clarke-s-explosive-cia-cover-up-charge.html ”
That is an interesting article, Rich. Below are a couple of additional links, two concerning the NSA and the other army intel on 9/11 and tie in with Richard Clarke’s statement. The CIA is not the only agency at fault or the only one guilty at covering up.
Bureaucracies like patterns, because patterns make it easier to produce ‘something’ and dont require too much contemplation, sorry to say. Categorization has its limits too, though.
Why exactly is data being collected on Americans – is it a nation of easy social networks, geared toward helping terrorists within our borders? Clearly not. The majority of Americans are trying to get by. What is the real purpose for the data then? Is this serving as a bank for companies to mine for business purposes and security just a cover? A ‘private-public partnership’ gone amok?
Per Jim’s observation, there should be concern about increasing use of data being classified to avoid testimonies in trials or citing classification to avoid investigations. That includes murder investigations as in the case of Gareth Williams, a security agent, whose bizarre death was incredulously ruled an ‘accident’ and sparked an outcry.
The Fourth Amendment has been so watered down and these days, when an agency cites privacy rules to refrain from commenting — that should serve as a red flag to all of us, its being used to protect the perp and impede justice for the party who really needs a fair hearing
(http://www.telegraph.co.uk/news/uknews/crime/9218325/Secret-meeting-between-MI6-and-police-hours-after-discovery-of-spy-Gareth-Williamss-death.html)
http://edition.cnn.com/2013/12/30/opinion/bergen-nsa-surveillance-september-11/
http://en.wikipedia.org/wiki/Able_Danger
http://www.alternet.org/how-many-americans-are-rotting-prison-because-secret-evidence-collected-spy-agencies
03/29/14 4:57 PM | Comment Link
Jamesmmm said...
18most enforcement will be done on a selective basis, meaning if you are mostly doing what they expect you to do, you’ll be in the clear…
and don’t forget how many people are already in on these con jobs….almost all government workers and contractors and their families, plus all people hoping to get a similar job, plus most people who are dependent on government…I hate to be so pessimistic but it appears to me that we have reached the point of no return…. Baaaaah!!!
03/29/14 11:22 PM | Comment Link
Jamesmmm said...
19PS: look above- that is city state or federal government workers of contractors or those related to them or hoping to be benefiting from them in one way or another…and it there are any truth seekers, those will be given ultimatum
03/29/14 11:26 PM | Comment Link
Jamesmmm said...
20What the US needs is a good system for accrediting spies: look at this agency the UK set up to accredit their spies–> 1drv.ms/1ppZoiP (copy/paste)
03/29/14 11:35 PM | Comment Link
pitchfork said...
21Jamesmmm said…
“..and don’t forget how many people are already in on these con jobs….almost all government workers and contractors and their families, plus all people hoping to get a similar job, plus most people who are dependent on government…”
So, if I understand your hypothesis..”all people hoping to get a similar job, plus most people who are dependent on government”..are in on the “con job”. Is that right?
umm,,son, I hate to be the bearer of bad news..but you seriously need to address your addiction to Synthetic Lobotomy Serum.
(insert double facepalm here and a few rolling eyes too.)
03/30/14 1:52 PM | Comment Link
pitchfork said...
22Kyzl said:
“…there should be concern about increasing use of data being classified to avoid testimonies in trials or citing classification to avoid investigations. That includes murder investigations as in the case of Gareth Williams, a security agent, whose bizarre death was incredulously ruled an ‘accident’ and sparked an outcry.”
Indeed. Prior to the last claim by the Metro police that it was an accident, the coroner claimed it was impossible for Williams to “lock himself” in the bag. Bizarre is a massive understatement. I bet the coroner was ready to murder someone herself afterwards. When
From Kyzl’s link on Williams..
“It has also emerged that the US State Department asked MI6 to ensure that no details of Mr Williams’s work should emerge at the forthcoming inquest. US officials asked SIS to raise the matter with the Foreign Office.”
US State Dept. tampering with a murder investigation that might expose NSA’s conspiracy with GCHQ. whudda thunk. Too bad Snowden fucked up their little conspiracy to spy on the whole goddammed planet. William might still be alive had Snowden’s revelations got leaked sooner. No matter, the cat’s outta the bag now. But instead of Congress pinning down the NSA..what do these motherfuckers do? You got it..Obuttface simply makes it easy for Congress to LEGALIZE the usurpation of the Constitution. Indeed. Orwell had these cocksuckers pegged.
Ya know.. I’m just glad my Dad didn’t live to see what his generation gave only to make the MIC strong enough to corrupt the USG into a psychopathic Empire. Although he saw enough before he died to surrender his allegiance to a US military gone mad, and he saw what happened in Iraq. But I fear had he seen what this country has become now, it would have broke his heart. Before he died, he always thought the events under Bush were an abomination that would right itself under Obama and the values he believed in.
Unfortunately, those values were tortured under Bush and crucified under Obama. There is only one certainty left. Revelations. This decade is living proof.
03/30/14 2:38 PM | Comment Link
pitchfork said...
23ps. I. WOULD. PAY. FOR. AN. EDIT BUTTON.
FACEPALM INDEED.
03/30/14 2:41 PM | Comment Link
pitchfork said...
24Indeed…
http://www.theguardian.com/commentisfree/2014/mar/29/surveillance-reform-whats-not-in-new-nsa-laws
whudda thunk.
sheeezushfuckingcrist. These bastards are shameless.
Even Rogers knew his hubris was too much when he tried to slip the name “End Bulk Collection Act” on his bill.
03/30/14 4:01 PM | Comment Link
jim hruska said...
25PVB,
Nobody ever asks the obvious=”what is the shelf life of this collection process?
jim
03/30/14 5:56 PM | Comment Link
teri said...
26And I want to know what they intend to do with all the data already collected and stored. Congress and Obama are full of BS “plans” and “reforms” to the system moving forward, but they already have huge facilities full of computer systems which serve no purpose other than storing the shit they have been (illegally) collecting all these years. No-one is talking about a “Dump and Destroy the Already-Collected Data Act”.
Or the “Release the Kraken Act”. No, that would somehow involve turning John McCain loose on Canada or something.
How about the “Retroactively Eliminating Data Act” (REDACT, for short)?
03/30/14 7:20 PM | Comment Link
Rogers/Ruppersberger vs Leahy/Sensenbrenner vs Obama? NSA reform proposals and reactions | Notes from Self said...
27[…] Two, the judge whose prior approval the NSA would need, would likely be a FISA court judge which, once again, raises the question of responsible oversight: “the […] FISA court […] has a long record of rubber stamping government requests, no doubt in …. […]
03/30/14 10:02 PM | Comment Link
pitchfork said...
28@ Notes from Self..
“End Bulk Collection Act of 2014.
What this legislation would actually do, is to expand rather than rein in, some of the NSA’s powers.”
Indeed. Meanwhile the DCOTP collectively sighs in relief thinking the “debate” is finally over and they can go back to Kardashian’s ass and pizza. Not that they really gave a damn in the first place. Living proof? Orders for iPhone6.
03/31/14 12:37 PM | Comment Link
pitchfork said...
29Meanwhile, every Law enforcement outfit in the nation is pretending their commitment to signing a corporate “silence agreement” with the manufacturer of cellphone tower emulators(Stingrays) gives them the right to warrant-less search and seizure.. notwithstanding not telling judges they were using them…
http://www.wired.com/2014/03/stingray/
https://www.aclu.org/blog/national-security-technology-and-liberty/police-hide-use-cell-phone-tracker-courts-because
youbetcha.. Totalitarianism-R-Us expanding exponentially while the DCOTP yawns and orders new iPhones by the millions.
DCOTP is a massive understatement. Fucking braindead is more like it.
03/31/14 12:47 PM | Comment Link