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Jan 22 2014

What Obama Didn’t Do on the NSA Reforms

Geoffrey Stone, the University of Chicago law school professor who served on President Obama’s review group on the NSA and privacy, thinks that the president’s recent speech and immediate reforms are important steps in reining in illegal surveillance. In particular, he praises him for the decision to require the NSA to get warrants from the FISA court to access any metadata that is archived. But he also points out an important reform he refused to endorse:

Third, we recommended that the FBI should no longer be permitted to issue National Security Letters without first obtaining a judicial order, in the absence of an emergency. NSLs enable the FBI to require banks, telephone companies, Internet providers, credit card companies, and the like to turn over the records of specific individuals when the FBI determines that they are relevant to a national security investigation. The FBI issues approximately 20,000 NSLs each year. The process is highly secret and remains so for decades after the fact.

Our judgment was that, in order to ensure the integrity of the program, NSLs generally should not issue without prior judicial approval. The FBI resisted this proposal vehemently. In its view, such a requirement would impair the FBI’s ability to move quickly and efficiently. We rejected that contention, especially in light of the emergency exception. The FBI argued further that because prosecutors in ordinary criminal cases can issue subpoenas to obtain similar information without a court order, it made no sense to have a more burdensome procedure for national security investigations. We disagreed with that position, mainly because of the intensive secrecy surrounding the NSL process. The president sided with the FBI. Although stating that various reforms would be adopted to reduce the secrecy of NSLs — reforms we endorse — he declined to accept our recommendation about judicial orders.

This is a very important reform. Let’s add to this that NSLs should only be issued for terrorism cases, along with “sneak and peek” warrants, which have been used far more often in drug cases than in terrorism cases. But all of that requires congressional action, which is unlikely to happen.

8 comments

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  1. 1
    Marcus Ranum

    important steps in reining in illegal surveillance

    The important steps were done when it was made illegal. All that Obama needs to do, to “rein in” the NSA would be to uphold the law and the constitution. Of course that’s not what’s going to happen.

  2. 2
    Marcus Ranum

    Ed,
    Let’s add to this that NSLs should only be issued for terrorism cases,

    This is a perfect example of how people fall for shifting the Overton window, every time.

  3. 3
    Crimson Clupeidae

    What Obama didn’t, and won’t, do on the NSA reforms.

    Fixt.

  4. 4
    Sean Boyd

    In particular, he praises him for the decision to require the NSA to get warrants from the FISA court to access any metadata that is archived.

    And that’s proved such a high hurdle to clear in the past.

  5. 5
    eric

    In a manner of speaking, everything the FBI does is national security because they only (supposedly) take on cases that span multiple states or break a federal (i.e. national) law.

    But other than that semantic quibble, I think NSLs need to be gotten rid of altogether. IANAL but IMO they are not anything like subpoenas, because subpoenas are about the judicial branch, whose job it is to rule in matters of law, having people show up in court. While it is manifestly not the executive branch’s job to decide when search warrants are needed, and when they are not, which is what NSLs do. Lastly, it is basically nobody’s job in the US to tell people who have been the subject of a government search that they cannot say they’ve been searched. AFAIK that’s a pretty new invention that came along with NSLs that didn’t generally exist in either branch before now, and has basically no constitutional justification. It’s a prior restraint on speech.

  6. 6
    doublereed

    By the way, highly related to this, Verizon released their first Transparency Report today about the government requests for their records:
    https://www.aclu.org/blog/national-security/verizon-begins-clear-air-first-transparency-report

  7. 7
    Artor

    Marcus @#2
    I’m glad you caught that too. The same thing jumped out at me. Why does terrorism suddenly abrogate our constitutional rights again?

  8. 8
    dysomniak "They are unanimous in their hate for me, and I welcome their hatred!"

    @ 2 & 7

    This is particularly problematic since the practical definition of “terrorism” seems indistinguishable from “civil disobedience.” Fuck, the FBI considers vegans and environmentalists a bigger “threat” (to corporate profits, obviously) than right wing nutjobs like McVeigh.

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