Why some privacy advocates are skeptical about Obama's new NSA guidelines

The Obama administration is taking steps to improve transparency around intelligence surveillance. Some critics say the new rules are not aggressive enough.

The Obama administration announced Tuesday new rules for how federal intelligence agencies collect and store US and foreign surveillance data.

These latest changes come a little over a year after the president promised to reform the National Security Agency’s controversial surveillance regime. The NSA’s tactics received widespread criticism after Edward Snowden leaked classified information from the secretive agency to mainstream media in 2013. Now, the Obama administration is taking steps to increase transparency and protect privacy. But critics say the changes are still not enough.

Ben FitzGerald, senior fellow and director of the Technology and National Security Program at the Center for New American Security, says that the Obama administration’s modest reforms are likely to be effective, even if they leave the president and the country vulnerable to criticism.

“Obama’s strategy is pragmatic and likely more effective, but will leave the administration, and the United States, open to ongoing criticism for not doing enough," Mr. FitzGerald writes in an e-mail to the Monitor. "These current reforms make the United States more transparent and protect foreign nationals’ data to a greater extent than other nations do. And yet, the United States will continue to be seen as maintaining an intelligence state.” 

President Obama has touted the changes as an important step toward protecting civil liberties. He mentioned the report during his January State of the Union address and stated that it would show that “we’re keeping our promise to keep our country safe while strengthening privacy.”

But many privacy advocates claim that the changes are insufficient and that the NSA should discontinue the bulk collection of US telephone records immediately.

The new guidelines are outlined in a report released Tuesday by the Office of the Director of National Intelligence and apply to intelligence personnel at the NSA as well as at the Federal Bureau of Investigation and Central Intelligence Agency. Data pertaining to Americans that is gathered “incidentally” during foreign surveillance collection will now be deleted immediately, as long as it is deemed unnecessary for security purposes. And in a move meant to appease foreign allies who were indignant upon learning they were once targets of NSA surveillance, similar data collected about foreigners will now be destroyed after five years.

The new rules also make public secretive national security letters used to compel companies to hand over the communications data or financial records of individual users. Tech companies have frequently complained about the tough gag orders that prevent them from disclosing information about the national security letters they receive. Some companies, such as Google, Twitter, and Yahoo, have opted to publish transparency reports detailing some statistics on requests for data or records. Under the new rules, all letters will be publicly disclosed after three years.

"My first impression on reading this report is it's hard to see much 'there' there," said Sen. Ron Wyden (D) of Oregon in a statement. "When it comes to reforming intelligence programs and protecting Americans' privacy, there is much, much more work to be done.”

Neema Singh Guliani, a lobbyist with the American Civil Liberties Union, said that the limits on the collection and storage of people's data are insufficient, The Hill reported. "The documents clearly show that the government continues to stand by a number of its troubling mass surveillance policies, despite mounting evidence that many of these programs are ineffective," she said. "The report released today underscores the need for action by Congress and the courts to fully reform the NSA."     

Obama has said he is willing to end the controversial collection of US telephone records if Congress sends him a suitable bill to replace the program. In November, a Republican filibuster in the Senate blocked a vote on the USA Freedom Act. Lawmakers in both chambers hailing from both sides of the political aisle have declared their intention to revive the bill in 2015. Pushing through some new legislation will be necessary before core provisions of the post-9/11 Patriot Act expire in June.

But critics say President Obama does not need to wait for Congress to end the controversial program.

“It should be noted that the Administration can end the bulk telephone records program at any time, without congressional involvement,” wrote members of the Privacy and Civil Liberties Oversight Board, an independent bipartisan agency within the executive branch that assesses the federal government’s efforts to fight terrorism while balancing the protection of civil liberties.

In the interim, however, CNAS's FitzGerald insists that any steps toward transparency – however slight – is much needed progress.

"The administration should continue to undertake surveillance reform whether that’s on an incremental or wholesale basis," he says.