NSA review panel closes in on new rules for surveillance, privacy

NSA review panel is expected to recommend that the agency's collection of phone metadata continue – along with new measures to protect the privacy of Americans and foreign citizens.

A presidential advisory panel charged with examining how National Security Agency surveillance affects Americans’ privacy has recommended that US phone-call data collection continue, subject to new restrictions and protections.

The advisory panel, made up of five individuals appointed by President Obama, also found that “steps to protect the privacy of foreign citizens” as well as foreign leaders should be taken, The New York Times reported.

The White House and its advisory panel are working under the pressure of a continuing drip of leaks of top-secret documents from Edward Snowden, the former NSA contractor, detailing the agency’s mass surveillance programs.

Those revelations have strained US ties with its allies in Europe, broadly pleased China and Russia, and ignited a firestorm of criticism from civil libertarians, privacy advocates, and lawmakers in Congress.

Legislation to reform intelligence data collection practices, the USA Freedom Act, has been introduced that would block the collection of Americans' telephone metadata. Its authors are Rep. Jim Sensenbrenner (R) of Wisconsin and Sen. Patrick Leahy (D) of Vermont, who helped write and pass the Patriot Act after the 9/11 attacks.

To address the tide of anti-NSA sentiment that some fear might derail NSA intelligence collection efforts that they say are vital to fighting terrorism, the panel is also recommending:

• Setting up an organization of legal defenders to argue on behalf of public privacy against NSA lawyers before the secret Foreign Intelligence Surveillance Court that oversees data collection from telephone and the Internet, the Times said.
• Having senior White House officials, and possibly the president as well, at least annually review a list of foreign leaders that are being monitored by the agency, the Times reported.
• Having the White House also review the range of intelligence collection programs to determine their ongoing value, compared with the damage they would do if their existence is exposed, the Times reported.
• Continuing to have as director of the NSA a military officer who also is in charge of the Pentagon’s US Cyber Command. That follows earlier reports of draft proposals that would have split the position and installed a civilian leader at the spy agency, The Wall Street Journal reported.
• Having a phone company or a third party hold Americans’ telephone metadata, which would end the NSA practice of bulk collection. NSA could collect data only after meeting a new, higher standard of proof, the Journal reported.

Besides the presidential advisory panel, the White House National Security Council has also conducted its own internal review of the NSA’s collection efforts.

Caitlin Hayden, an NSC spokeswoman, would not discuss specific panel recommendations, but offered some observations.

“Our review is looking across the board at our intelligence gathering to ensure that as we gather intelligence, we are properly accounting for both the security of our citizens and our allies, and the privacy concerns shared by Americans and citizens around the world,” she told the Times. “We need to ensure that our intelligence resources are most effectively supporting our foreign policy and national security objectives – that we are more effectively weighing the risks and rewards of our activities.”

An observer briefed on the documents separately confirmed to the Monitor the outlines of both the presidential panel and the NSC’s report recommendations.

“The NSC’s recommendations in its report have been largely in sync with those of the presidential panel – and where the two coincide, we are likely to see changes,” a source familiar with both reports told the Monitor, but requested anonymity because the source was not permitted to reveal details to the press.

“I’ll be proposing some self-restraint on the NSA, and, you know, to initiate some reforms that can give people more confidence,” President Obama said in an interview on MSNBC last week.

The five-person presidential advisory panel includes Richard Clarke, a former counterterrorism official in the Clinton and Bush administrations; Michael Morell, former CIA deputy director; Cass Sunstein, a Harvard Law School professor who served in the Obama White House; Peter Swire, a privacy law expert; and Geoffrey Stone, a constitutional law expert.

Another pressure point, some observers say, is that the European Union and US negotiators will hold a third round of talks on a planned Transatlantic Trade and Investment Partnership (TTIP) in Washington between Dec. 16 and 20. At present, the Europeans are upset over the NSA bugging of German Chancellor Angela Merkel’s phone, the gathering of French citizens’ metadata, and a mass roundup of cellphone data across Europe.

“What’s driving this report is the administration is facing the next round of transatlantic trade and investment talks next week, and they need to have something to put on the table that will pacify Europeans,” says the source knowledgeable about the reviews. “I think these kinds of proposals could pacify them. It might be enough.”

Still, the recommendations, as telegraphed by leaks to the press, are unlikely to make either privacy advocates – or advocates of tough anti-terrorism action – mollified.

“It looks like an improvement, but in practice I’m not at all sure that it would be,” says Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security program. “We would be creating an entirely new set of problems where all kinds of companies could be required to maintain rich databases of personal information for the government to mine.”

John Bumgarner, a former intelligence officer, said the reported changes would probably hobble the NSA, impairing its ability to pursue terrorists without doing much to address privacy concerns.

“Americans freely give up their data every day of their lives to grocery stories, credit card companies, insurance companies, Apple, Google for convenience – to get a coupon or a deal,” he says. “But they don’t want to give up some of these same data points so they can help prevent a terrorist from blowing up a mall. For the NSA, all these added restrictions are going to make their job a lot harder.”

Are Americans simply being naive and hypocritical in allowing private companies to amass databases of detailed information about them to get lower prices – but then preventing their government from doing so to catch terrorists?

No, says Ms. Goitein.

“The difference is that your insurance company or grocery isn’t going to want to put you in jail,” she says. “If you look at the history of our intelligence services going back to the cold war, there is that danger – and that’s why we put laws in place. Congress amended them under the Patriot Act, and now we’ve got to watch out for this sort of excess all over again.”