The National Security Agency campus in Fort Meade, Md.
A panel looking into U.S. electronic surveillance activities in the wake of the Edward Snowden revelations has recommended removing the NSA's authority to collect and store Americans' telephone data.
The key recommendation was one of ; however, it did not propose a wholesale scaling back of domestic spying by the National Security Agency and other intelligence branches.
Richard Clarke, a member of the advisory panel, said, "Although we found no evidence of abuse ... the potential for abuse in the future is there, and the technology is certainly there to create a surveillance state in the future."
"We want to put in place more oversight outside of those agencies," he said.
The Associated Press says: "It was not immediately clear whether the proposed changes would limit the scope of the collections." The recommendations, if adopted, would "end the government's systematic collection of logs of all Americans' phone calls, and [keep] those in private hands, 'for queries and data mining' only by court order," .
The panel also recommended "new criteria that should be met before the United States engages in surveillance of foreign leaders," reports Reuters. "Before spying on such leaders, U.S. officials should determine if there are other ways to obtain the necessary information and weigh the negative effects if the surveillance becomes public, panel members wrote in one of 46 recommendations."
Taken together, The Times says, "the recommendations would remove from the N.S.A.'s hands the authority to conduct many of its operations without review by the president, Congress or the courts. But by themselves, they would terminate few programs."
President Obama ordered the review board after a series of exposes in British and U.S. newspapers detailing leaks by former NSA contractor Snowden, who fled the U.S. and is now living in temporary asylum in Russia. He is not obligated to accept their proposals.
The White House said Wednesday that the president had met with the panel:
Update at 6:00 p.m. ET. Concern Over Proposed Curb On National Security Letters:"This meeting offered President Obama an opportunity to hear directly from the group's members and discuss the thinking behind the 46 recommendations in their report. The President noted that the group's report represented a consensus view, particularly significant given the broad scope of the members' expertise in counterterrorism, intelligence, oversight, privacy and civil liberties. The President again stated his expectation that, in light of new technologies, the United States use its intelligence collection capabilities in a way that optimally protects our national security while supporting our foreign policy, respecting privacy and civil liberties, maintaining the public trust, and reducing the risk of unauthorized disclosure."
The recommendations from the panel also include , "which give the government sweeping authority to demand financial and phone records without prior court approval in national security cases."
An FBI official who spoke to NPR's Carrie Johnson expressed "grave concern" about that particular recommendation, saying the letters are used in the initial stages of thousands of national security investigations each year. They could lose nearly all their value if judicial signoffs delay the process of obtaining them.
Meanwhile, the American Civil Liberties Union said in a statement that it welcomes the report.
"NSA's surveillance programs are un-American, unconstitutional, and need to be reined in," said Executive Director Anthony D. Romero. "We urge President Obama to accept his own Review Panel's recommendations and end these programs."
Obama Is Urged to Sharply Curb N.S.A. Data Mining
By DAVID E. SANGER and CHARLIE SAVAGE
Published: December 18, 2013 311 Comments
WASHINGTON — A panel of outside advisers urged President Obama on
Wednesday to impose major oversight and some restrictions on the
National Security Agency, arguing that in the past dozen years its
powers had been enhanced at the expense of personal privacy.
Markus Schreiber/Associated Press
Richard A. Clarke, a former national security
official, said a new report would reassure the public on shielding civil
liberties.
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The panel recommended changes in the way the agency collects the
telephone data of Americans, spies on foreign leaders and prepares for
cyberattacks abroad.
But the most significant recommendation of the panel of five
intelligence and legal experts was that Mr. Obama restructure a program
in which the N.S.A. systematically collects logs of all American phone
calls — so-called metadata — and a small group of agency officials have
the power to authorize the search of an individual’s telephone contacts.
Instead, the panel said, the data should remain in the hands of
telecommunications companies or a private consortium, and a court order
should be necessary each time analysts want to access the information of
any individual “for queries and data mining.”
The experts briefed Mr. Obama on Wednesday on their 46 recommendations,
and a senior administration official said Mr. Obama was “open to many”
of the changes, though he has already rejected one that called for
separate leaders for the N.S.A. and its Pentagon cousin, the United
States Cyber Command.
If Mr. Obama adopts the majority of the recommendations, it would mark
the first major restrictions on the unilateral powers that the N.S.A.
has acquired since the Sept. 11 terrorist attacks. They would require
far more specific approvals from the courts, far more oversight from the
Congress and specific presidential approval for spying on national
leaders, especially allies. The agency would also have to give up one of
its most potent weapons in cyber conflicts: the ability to insert “back
doors” in American hardware or software, a secret way into them to
manipulate computers, or to purchase previously unknown flaws in
software that it can use to conduct cyber attacks.
“We have identified a series of reforms that are designed to safeguard
the privacy and dignity of American citizens, and to promote public
trust, while also allowing the intelligence community to do what must be
done to respond to genuine threats,” says the report, which Mr. Obama
commissioned in August in response to the mounting furor over
revelations by Edward J. Snowden, a former N.S.A. contractor, of the
agency’s surveillance practices.
It adds, “Free nations must protect themselves, and nations that protect themselves must remain free.”
White House officials said they expected significant resistance to some
of the report’s conclusions from the N.S.A. and other intelligence
agencies, which have argued that imposing rules that could slow the
search for terror suspects could pave the way for another attack. But
those intelligence leaders were not present in the Situation Room on
Wednesday when Mr. Obama met the authors of the report.
The report’s authors made clear that they were weighing the N.S.A.’s
surveillance requirements against other priorities like constitutional
protections for privacy and economic considerations for American
businesses. The report came just three days after a federal judge in
Washington ruled that the bulk collection of telephone data by the
government was “almost Orwellian” and a day after Silicon Valley
executives complained to Mr. Obama that the N.S.A. programs were
undermining American competitiveness in offering cloud services or
selling American-made hardware, which is now viewed as tainted.
The report was praised by privacy advocates in Congress and
civil-liberties groups as a surprisingly aggressive call for reform.
Senator Ron Wyden, an Oregon Democrat who has been an outspoken critic
of N.S.A. surveillance, said it echoed the arguments of the N.S.A.’s
skeptics in significant ways, noting that it flatly declared that the
phone-logging program had not been necessary in stopping terrorist
attacks.
“This has been a big week for the cause of intelligence reform,” he said.
Greg Nojeim of the Center for Democracy and Technology called the report
“remarkably strong,” and singled out its call to sharply limit the
F.B.I.’s power to obtain business records about someone through a
so-called national security letter, which does not involve court
oversight.
Anthony Romero, the executive director of the American Civil Liberties
Union, while praising the report’s recommendations, questioned “whether
the president will have the courage to implement the changes.”
Members of the advisory group said some of the recommendations were
intended to provide greater public reassurances about privacy
protections rather than to result in any wholesale dismantling of the
N.S.A.’s surveillance powers. Richard A. Clarke, a cyberexpert and
former national security official under Presidents Bill Clinton and
George W. Bush, said the report would give “more reason for the skeptics
in the public to believe their civil liberties are being protected.”
Other members included Michael J. Morell, a former deputy director of
the C.I.A.; Cass Sunstein, a Harvard Law School professor who ran the
office of Information and Regulatory Affairs in the Obama White House;
Peter Swire, a privacy law specialist at the Georgia Institute of
Technology; and Geoffrey R. Stone, a constitutional law specialist at
the University of Chicago Law School, where Mr. Obama once taught.
Mr. Obama is expected to take the report to Hawaii on his vacation that
starts this week and announce decisions when he returns in early
January. Some of the report’s proposals could be ordered by Mr. Obama
alone, while others would require legislation from Congress, including
changes to how judges are appointed to the Foreign Intelligence
Surveillance Court.
Senator Rand Paul, Republican of Kentucky, said he was skeptical that
any changes passed by Congress would go far enough. “It gives me
optimism that it won’t be completely brushed under the rug,” he said.
“However, I’ve been here long enough to know that in all likelihood when
there’s a problem, you get window dressing.”
The FISA court, which oversees national security surveillance inside the
United States, has been criticized because it hears arguments only from
the Justice Department without adversarial lawyers to raise opposing
views, and because Chief Justice John G. Roberts Jr. has unilateral
power to select its members. Echoing proposals already floated in
congressional hearings and elsewhere, the advisory group backs the view
that there should be a “public interest advocate to represent the
interests of privacy and civil liberties” in classified arguments before
the court. It also says the power to select judges for the surveillance
court should be distributed among all the Supreme Court justices.
In backing a restructuring of the N.S.A.’s program that is
systematically collecting and storing logs of all Americans’ phone
calls, the advisers went further than some of the agency’s backers in
Congress, who would make only cosmetic changes to it, but stopped short
of calling for the program to be shut down, as its critics have urged.
The N.S.A. uses the telephone data to search for links between people in
an effort to identify hidden associates of terrorism suspects, but the
report says it “was not essential to preventing attacks.”
Currently, the government obtains orders from the surveillance court
every 90 days that require all the phone companies to give their
customers’ data to the N.S.A., which commingles the records from every
company and stores it for five years. A small group of analysts may
query the database — examining records of everyone who is linked by up
to three degrees of separation from a suspect — if the analyst has
“reasonable, articulable suspicion” that the original person being
examined is linked to terrorism.
Under the new system proposed by the review group, such records would
stay in private hands — either scattered among the phone companies or
pooled into some kind of private consortium. The N.S.A. would need to
make the case to the surveillance court that it has met the standard of
suspicion — and get a judge’s order — every time it wanted to perform
such “link analysis.”
“In our view, the current storage by the government of bulk metadata
creates potential risks to public trust, personal privacy, and civil
liberty,” the report said.
The report recommended new privacy protections for the disclosure of
personal information about non-Americans among agencies or to the
public. The change would extend to foreigners essentially the same
protections that citizens have under the Privacy Act of 1974 — a way of
assuring foreign countries that their own citizens, if targeted for
surveillance, will enjoy at least some protections under American law.
It also said the United States should get out of the business of
secretly buying or searching for flaws in common computer programs and
using them for mounting cyberattacks. That technique, using what are
called zero-day flaws, so named because they are used with zero days of
warning that the flaw exists, were crucial to the cyberattacks that the
United States and Israel launched on Iran in an effort to slow its
nuclear program. The advisers said that the information should be turned
over to software manufacturers to have the mistakes fixed, rather than
exploited.
Regarding spying on foreign leaders, the report urged that the issue be
taken out the hands of the intelligence agencies and put into the hands
of policy makers.
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