Can We Trust Our Government Not To Spy On Us?

    June 18, 2013

Earlier this month, it was revealed that the NSA collects massive amounts of information on non-Americans and Americans via phone tapping and Internet surveillance. President Obama and his administration were quick to deny that the program targets Americans. He’s been relatively quiet about the NSA since then, but he finally broke that silence in an interview with Charlie Rose.

In short, he is still defending the NSA spying program. He argues that it’s needed to protect the American people from terrorism. It’s a noble cause, but can we really trust the Obama administration with its recently revealed spying powers?

Are you comfortable with the NSA spy programs? Do you think Obama is right to defend it? Let us know in the comments.

So, let’s start with a breakdown of Obama’s interview with Rose. You can watch the interview here, and BuzzFeed has a transcript up of the important NSA bits from the 45 minute interview. First up – Obama says that the NSA spy programs are all about tradeoffs. In other words, he argues that it’s fine to give up a little freedom in exchange for security:

Well, in the end, and what I’ve said, and I continue to believe, is that we don’t have to sacrifice our freedom in order to achieve security. That’s a false choice. That doesn’t mean that there are not tradeoffs involved in any given program, in any given action that we take. So all of us make a decision that we go through a whole bunch of security at airports, which when we were growing up that wasn’t the case…. And so that’s a tradeoff we make, the same way we make a tradeoff about drunk driving. We say, “Occasionally there are going to be checkpoints. They may be intrusive.” To say there’s a tradeoff doesn’t mean somehow that we’ve abandoned freedom. I don’t think anybody says we’re no longer free because we have checkpoints at airports.

Obama is quick to point out that there is a balance in place to ensure that the spy programs don’t go too far:

The way I view it, my job is both to protect the American people and to protect the American way of life, which includes our privacy. And so every program that we engage in, what I’ve said is “Let’s examine and make sure that we’re making the right tradeoffs.”

Going even further, Obama reiterates that the NSA can’t spy on an American citizen:

What I can say unequivocally is that if you are a U.S. person, the NSA cannot listen to your telephone calls, and the NSA cannot target your emails … and have not. They cannot and have not, by law and by rule, and unless they — and usually it wouldn’t be “they,” it’d be the FBI — go to a court, and obtain a warrant, and seek probable cause, the same way it’s always been, the same way when we were growing up and we were watching movies, you want to go set up a wiretap, you got to go to a judge, show probable cause….

So point number one, if you’re a U.S. person, then NSA is not listening to your phone calls and it’s not targeting your emails unless it’s getting an individualized court order. That’s the existing rule. There are two programs that were revealed by Mr. Snowden, allegedly, since there’s a criminal investigation taking place, and they caused all the ruckus. Program number one, called the 2015 Program, what that does is it gets data from the service providers like a Verizon in bulk, and basically you have call pairs. You have my telephone number connecting with your telephone number. There are no names. There is no content in that database. All it is, is the number pairs, when those calls took place, how long they took place. So that database is sitting there. Now, if the NSA through some other sources, maybe through the FBI, maybe through a tip that went to the CIA, maybe through the NYPD. Get a number that where there’s a reasonable, articulable suspicion that this might involve foreign terrorist activity related to Al-Qaeda and some other international terrorist actors. Then, what the NSA can do is it can query that database to see did any of the — did this number pop up? Did they make any other calls? And if they did, those calls will be spit out. A report will be produced. It will be turned over to the FBI.

Now, this is where the narrative starts to diverge. Edward Snowden, the whisteblower that leaked the NSA spy programs to the press, said in a Q&A with Guardian readers that the NSA can listen in on the content of American’s phone calls. More worrisome, he said that this communications content can be obtained without a warrant:

NSA likes to use “domestic” as a weasel word here for a number of reasons… The reality is that due to [a 2008 federal law known as FAA 702], Americans’ communications are collected and viewed on a daily basis on the certification of an analyst rather than a warrant. They excuse this as “incidental” collection, but at the end of the day, someone at NSA still has the content of your communications… If I target for example an email address, for example under FAA 702, and that email address sent something to you, Joe America, the analyst gets it. All of it. IPs, raw data, content, headers, attachments, everything. And it gets saved for a very long time — and can be extended further with waivers rather than warrants.”

Later on in the interview with Rose, Obama addresses PRISM – the spy program that allegedly gathers data from Internet companies like Google, Facebook and others. He asserts that this program, like the aforementioned phone tapping program, doesn’t target Americans:

There is a second program called the 702 program. And what that does is that does not apply to any U.S. person. Has to be a foreign entity. It can only be narrowly related to counter-terrorism, weapons proliferation, cyber hacking or attacks, and a select number of identifiers — phone numbers, emails, et cetera. Those — and the process has all been approved by the courts — you can send to providers — the Yahoos or the Googles, what have you. And in the same way that you present essentially a warrant. And what will happen then is that you there can obtain content. But again, that does not apply to U.S. persons. And it’s only in these very narrow bands. So, you asked, what should we do? …What I’ve said is — is that what is a legitimate concern — a legitimate critique — is that because these are classified programs — even though we have all these systems of checks and balances, Congress is overseeing it, federal courts are overseeing it — despite all that, the public may not fully know. And that can make the public kind of nervous, right? Because they say, “Well, Obama says it’s okay — or Congress says it’s okay. I don’t know who this judge is. I’m nervous about it.” What I’ve asked the intelligence community to do is see how much of this we can declassify without further compromising the program, number one. And they are in that process of doing so now so that everything that I’m describing to you today, people, the public, newspapers, etc., can look at because frankly, if people are making judgments just based on these slides that have been leaked, they’re not getting the complete story.

Obama’s statement echoes what we’ve been hearing recently from tech companies that were allegedly involved in PRISM. Google and Facebook both released statements last week saying that the leaked slides were inaccurate, but highlighted a need for more transparency to prevent customers from leaving them for others that promise security and privacy.

Do you believe Obama will make the NSA more transparent? Or is just an empty promise? Let us know in the comments.

Now then, President Obama and the tech companies aren’t addressing the elephant in the room – incidental data collection. In the original PRISM leaks, it was revealed that the NSA would collect data on non-targeted American citizens. It can’t go through this data without a warrant, but it’s worrisome nonetheless to know that the NSA is collecting information on American citizens without a warrant.

So, how are they are able to get away with it? In a recently revealed court case from 2008, it was shown that Yahoo fought against a court order to hand over data that included incidental data. In the case, the secret FISA court ruled “that incidental collections occurring as a result of constitutionally permissible acquisitions do not render those acquisitions unlawful.” The court also said that the Bush administration assured it “that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary.”

Something must have changed between 2008 and now, however, as the government outright admitted over the weekend that it does keep a database of the information it collects. It doesn’t say whether or not that includes incidental data, but Snowden has said that it does. The government maintains that this information is destroyed every five years, but it still may have incidental data from American citizens on its servers for five years.

So, where do we go from here? At the end of his interview, Obama says that he understands the concerns from civil liberty proponents, and that he wants to initiate a national debate with these groups about the NSA and other programs involving the collection of data:

I’ve stood up a privacy and civil liberties oversight board, made up of independent citizens including some fierce civil libertarians. I’ll be meeting with them. And what I want to do is to set up and structure a national conversation, not only about these two programs, but also the general problem of data, big data sets, because this is not going to be restricted to government entities.

Do you think Obama will really start a national debate on NSA spy programs and data collection? Will it actually accomplish anything? Let us know in the comments.

[Image: White House/flickr]