President Obama gave what was billed as a very important speech on Friday that included a new presidential directive to rein in the NSA’s data mining programs and provide more safeguards for privacy. It was, predictably, a mostly meaningless collection of surface reforms that change very little.
It begins with what is little more than a few paragraphs of rhetorical jerking off about how the government’s data mining programs “must take into account that all persons should be treated with dignity and respect.” Seriously? They might as well have dropped in a few other meaningless buzzwords like “empowerment” and “synergy.” Screw dignity and respect. What I demand is that my constitutional rights be protected. That’s something concrete and specific, as opposed to these pathetic platitudes.
The one potentially meaningful reform in the directive is a requirement that the vast databases of metadata be kept not by the NSA but by a third party, yet to be identified (the president’s commission on these matters recommended that the telecom companies themselves or an independent third party archive that material). The NSA, beginning immediately, will have to ask for access to specific records on a case-by-case basis, with a warrant from the FISA court. That’s a meaningful safeguard, but not good enough.
The problem with it is that the FISA court almost never says no to a warrant and the procedures are non-adversarial. There is no one there to represent the interests of privacy or argue for the 4th Amendment, only the government. But that reform would require a new law from Congress to get done, it isn’t something that the president can order himself. So that’s at least partway to creating an important safeguard.