Obama Plans Cosmetic Surveillance Changes After All, Will Set Up Pretend Fight Over NSLs

from the theatrical-reforms dept

Mon, Jan 6th 2014 1:06pm — Mike Masnick

Leaks coming out of the Obama administration suggest that the President is preparing mostly cosmetic changes to the intelligence community, following the recommendations from the intelligence task force -- which were much stronger than many expected. The reports suggest things like putting a public advocate to represent the public's views in certain cases before the FISC. This has been talked about for a while, and was the main concession plenty of people had been expecting anyway. That's hardly anything big.

The article talks about two other potential reforms. The first is shifting the holding of phone call metadata from the NSA to the phone companies, allowing the NSA to still search through it after getting a court order. While this may be a marginal improvement, it still has tremendous problems. It will almost certainly come with some sort of data retention law -- something that the feds have wanted for ages, and which civil liberties activists have been fighting against for years. Companies shouldn't be required to hang on to data they don't need, especially if getting rid of it can better protect their users' privacy. Furthermore, while not letting the NSA hang onto the data is a good thing, there is a reasonable concern that if the telcos are hanging onto the data themselves, that they, too, might do bad things with it, with little to no oversight.

However, most of the article from the LA Times focuses on National Security Letter (NSL) reform. We've written about those for years. NSLs are the way that the FBI can demand information from companies without any judicial review at all and, even more insane, with a complete gag order that prevents the recipient from telling anyone (including, at times, your lawyer). The FBI has an incredibly long history of "serious misuse" of NSLs, and has shown little to no interest in fixing the process. Nearly a year ago, a court actually ruled them unconstitutional, but there's an ongoing appeals process that will take quite a bit of time.

However, as the article notes, the DOJ/FBI and other surveillance maximalists are all horrified by the idea that Obama might actually require judicial approval of NSLs, for all but "emergency" situations. What this sounds like is that the President may suggest something along those lines, there will be a well coordinated press attack from surveillance hawks freaking out about the danger this puts us all in... and then he'll back down on that one point. And we'll be left with... basically nothing, but the President will go around insisting that he reformed the intelligence community, while everything more or less stays the same.

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Filed Under: barack obama, fisa court, fisc, national security letters, nsa, nsl, public advocate, reform, surveillance

36 Comments

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Anonymous Coward, 6 Jan 2014 @ 1:12pm

Next step: impeachment.
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out_of_the_blue, 6 Jan 2014 @ 1:28pm

Wrong AC @ #1: Next step, MORE surveillance.
Man, optimists are apparently incurable! Tens of billions on surveillance and tens of trillions on "defense" aren't just going to sit idle. They're already "wasted" in any sense of public good so I avoid that word, but the true purpose of the massive total authoritarian / military / surveillance state isn't just going to be dropped after these petty revelations! I can't see the least excuse for optimism.

This is SO expected that Mike can't even rally to "this isn't surprising"!

Just interesting view you may have missed and won't get from here:

Blame Silicon Valley for the NSA's data slurp... and what to do about it
Hive mind gloop and legal sophistry paved the way

http://www.theregister.co.uk/2013/12/31/blame_silicon_valley_for_the_nsas_data_slurp_and_what_to_ do_about_it/
So long as "The Market" (if not NSA directly) rewards Google for spying, do you expect it to do LESS of it?

09:25:59[k-626-5]
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Zakida Paul (profile), 6 Jan 2014 @ 1:30pm

A data retention law together with existing NSA surveillance could very well see the end of many American tech companies. At least companies were able to keep no logs and then, when the authorities request data, say "sorry we don't keep that data".

Bring in a data retention law and that stops and privacy/security minded people go offshore.
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Guardian, 6 Jan 2014 @ 1:34pm

PATHETIC
the got something on both parties or it would be game over for nsa by now.
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Anonymous Coward, 6 Jan 2014 @ 1:38pm

Re:
The major problem with that is that the idiot brigade are frothing over non-issues have damaged the credibility of the option.

Worst of all are those who fanatically called for his impeachment over non-issues like Benghazi or for not remotely illegal stuff like the Affordable Care Act ignore enough real issues that make Richard Nixon look like a choir boy approve of this Orwellian shit because terrorists are their excuse for everything since they can't use the Soviet Union anymore on account of their fatal case of non-existence.
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Anonymous Coward, 6 Jan 2014 @ 1:41pm

Backdoor searches not affected
Making initial queries at the telcos doesn't seem like it will fix the backdoor search problem:

If they get a court order allowing them to do a 3-hop query on a legitimate target (perhaps sucking in data from 20% of all US citizens), they can still go back and do all the follow-up data-mining they want on that sucked up data without having to go to any court.
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Jake, 6 Jan 2014 @ 1:41pm

Re:
And then what? Assuming you get through the impeachment process without any riots or terrorist attacks, who do you propose to replace the guy with? The Republicans have gone so far into crazytown that some of them probably deserve to have the NSA reading their mail, and the Democrats have shown a distressing tendency to talk a good game but fold like a worn-out deckchair when it comes to voting time.
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Paraquat (profile), 6 Jan 2014 @ 1:43pm

The corporate president
I long ago gave up on Obama, despite the fact that I consider myself fairly liberal. I watched as he sold out completely to Wall Street, first by failing to prosecute all the fraud and then by throwing bailouts at the companies that committed all these crimes. And those bailouts continue (in the form of QE3). He stocked his cabinet with corporate stooges. And then he completely kept his mouth shut during #Occupy while the cops beat the crap out of demonstrators - said not one word, as if it all wasn't happening. The Obamacare which miraculously failed to either have a public option or end the ban on drug importation (which would compete with highly overpriced US drugs) while pressuring other countries to accept ridiculous US drug patents. Then his big crackdown on whistleblowers (including Snowden) who piss of the corporate elite. Finally, there is TPP which is corporate dream come true.

Obama does give nice speeches though. That's something, right?
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Anonymous Coward, 6 Jan 2014 @ 1:58pm

Re: Wrong AC @ #1: Next step, MORE surveillance.
Gotta wade through your snark, but you're absolutely right. Impeaching Obama will not bring the change we need. This goes far beyond one person or even one "institution" - it's systemic and the result of many different actions. We need to shift some of the focus towards the tech companies that collude with the government, most notably AT&T and Verizon. But Google and Facebook as well, definitely. It's not like they're going to put Eric Schmidt in jail if he refuses a NSL (how sad).

I'm surprised by the characterization given to the EFF, I've considered them to be on our side in this fight, but some more skepticism might be healthy towards them.

I like the point about owning our data, and agree that is one of the biggest underlying issues going on in this "debate." Moving forward, hopefully after some progress, we can address that with more determination. The idea of "the cloud" has always been very off-putting to me, and now we're starting to have some clear evidence of why (although I'm sure for people such as yourself, the evidence has been clear all along).
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Zakida Paul (profile), 6 Jan 2014 @ 1:59pm

Re: The corporate president
Obama is the perfect example of a style over substance President. He talks a big game but cannot or will not back it up with action. Even Obamacare, which is a step in the right direction (albeit a very small one) is a watered down version of what it could have been and what Americans need. His constant pandering to corporations is not what democracy is about.
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John Fenderson (profile), 6 Jan 2014 @ 2:01pm

Re: Re:
Assuming you get through the impeachment process without any riots or terrorist attacks, who do you propose to replace the guy with?

No proposal is necessary -- it's already determined by the Constitution. Hello, President Biden.
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John Fenderson (profile), 6 Jan 2014 @ 2:06pm

Re:
Yes, a thousand times this.

If I had to choose, I would prefer the NSA keep the data rather than have a data retention law.

Also, as much as it pains me to say so, I would prefer the NSA keep the data rather than have the telecoms keep it. The telecoms have absolutely no problem giving the government as much access tot heir records as they ask for anyway, and if the telecoms have it, then they themselves will "monetize" it -- effectively doubling the amount of spying going on.

I disagree with Mike on this point. It wouldn't be a marginal improvement. It would be an unambiguous step backwards.
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John Fenderson (profile), 6 Jan 2014 @ 2:07pm

Re: The corporate president
despite the fact that I consider myself fairly liberal.

That's an odd disclaimer, since Obama is not a liberal.
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Anonymous Coward, 6 Jan 2014 @ 2:08pm

Second, impeachment. Enough is enough. This guy clearly has no intention of ending the surveillance state, and wants US to continue going down the dark path of becoming a totalitarian state.

HE is the traitor, betraying this country and its value. Kick him out of office.
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Anonymous Coward, 6 Jan 2014 @ 2:14pm

The moving of data collection to telcos is such a TRAP. They're making it sound as if it's some kind of "improvement" for privacy.

The fact is their data collection is ILLEGAL. The 4th amendment says so: no SEIZURES without probable cause! So now they want to do it in a more "legal" way, even though we could all just say HELL NO, to all of their data collection, and they'd have to obey, since the way they're doing it now is ILLEGAL!

Allowing them to get away with this "improvement" won't make your data any safer, but it would put their data collection from illegal to legal, which is what they want, so next time they abuse their power with that data on you, and go in fishing expeditions with that data, they can just say it's legal, so nothing wrong with that.
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Arthur Moore (profile), 6 Jan 2014 @ 2:16pm

Re: Re: Wrong AC @ #1: Next step, MORE surveillance.
You'd be surprised what the government could get away with. Even if you ignore the blackmail potential that the NSA's data provides, they could:
a) fine the company a bajillion dollars
b) have the SEC crack down on the company
c) just arrest the poor low level guy who told them no

While I agree that some companies have been voluntarily working with the NSA, many don't have a choice.
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That One Guy (profile), 6 Jan 2014 @ 2:41pm

Re: Re: Re:
That's got to be one of the best arguments against impeachment right there...
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Rekrul, 6 Jan 2014 @ 2:55pm

Re:
Next step: impeachment.

Impeach the first black president??? What are you? Racist?
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Anonymous Coward, 6 Jan 2014 @ 2:58pm

Re: Re:
We need to stop voting sides and start voting issues.
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Anonymous Coward, 6 Jan 2014 @ 4:02pm

This was never going to be a surprise where it was going to go by his recommendations for change. The only surprise is how far it goes while trying to paint itself as improvements.

The remaining hopes are to be pinned on congress which isn't such a great thing since they can't even get together to do anything or waiting till election time when all these corporations decide who they will give money to and who they won't based on how much damage all this NSA spying has done their companies.
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Anonymous Coward, 6 Jan 2014 @ 4:07pm

Re: Re: Wrong AC @ #1: Next step, MORE surveillance.
Impeachment is a start at least at punishing them for their misbehaviour. Since clearly morals or logical arguments are doing shit we need enough heads to roll to build a pyramid to get them to realize who is really in charge.
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Anonymous Coward, 6 Jan 2014 @ 4:26pm

I've given up on legislators fixing anything, and by anything, I'm not just talking about the bulk unconstitutional spy program. I'm talking about everything under the sun.

We as American citizens, can no longer depend on the US government being functional organization that represents the well being of the American public.

I'm viewing the government more and more as a domestic enemy of the people. I think Congresses approval rating is at 13% last I checked. That seems to indicate I'm not alone in my view.
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Mike Masnick (profile), 6 Jan 2014 @ 5:14pm

Re: Re:
Also, as much as it pains me to say so, I would prefer the NSA keep the data rather than have the telecoms keep it. The telecoms have absolutely no problem giving the government as much access tot heir records as they ask for anyway, and if the telecoms have it, then they themselves will "monetize" it -- effectively doubling the amount of spying going on.

I disagree with Mike on this point. It wouldn't be a marginal improvement. It would be an unambiguous step backwards.

I can see your point. The one thing favoring keeping it out of the NSA's hands is that at least with the companies keeping it, there is *someone* who can step in and protest. Though, you're correct that it might be unlikely (extremely unlikely) that they would do so. Just giving the data to the NSA means they can then do whatever they want with it and no one ever knows.

But, basically, I think we both agree that both solutions suck.
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Anonymous Coward, 6 Jan 2014 @ 5:34pm

I see a fuck-load of new emergencies happening in the future.
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Alana (profile), 6 Jan 2014 @ 7:20pm

Re: Re: Re: Re:
I guess they're just Biden' their time...
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Anonymous Coward, 6 Jan 2014 @ 7:37pm

Re: Re:
Actually numerous aspects of the ACA's implementation have illegally exceeded the authority laid out in the law.
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@blamer, 6 Jan 2014 @ 8:23pm

On NSA "outsourcing" . . .
I could be naive but...

there is a reasonable concern that if the telcos are hanging onto the data themselves, that they, too, might do bad things with it, with little to no oversight

But then wouldn't we have introduced 10,000 of regular telco Joes with eyeballs, a conscience & perhaps a whistle to blow ...? I mean, I assume a corporate employee isn't as (il)legally coerced into silence as these gov't secret-keepers within the NSA.

If they get a court order allowing them to do a 3-hop query on a legitimate target (perhaps sucking in data from 20% of all US citizens), they can still go back and do all the follow-up data-mining they want on that sucked up data without having to go to any court.

Again, maybe I'm not sufficiently paranoid, but doesn't an employee need APPROVAL to go on each fishing expedition (?) even when the body of water is well known to be sitting here or there. To switch metaphors, even if a gallery has amassed an impressive collection of artworks we must assume its employees can't simply help themselves to the priceless artefacts being keep (not on the walls but) in storage under lock and key.
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Annonimus, 7 Jan 2014 @ 3:15am

You'd think they would have learned from the patent troll reform mess. They declawed and defanged the bill to fix the patent trolling in 2011 and in 2013 the patent trolling repair bills are back and they are trying to neuter them again, but are less successful and some reform will pass into law now and if the abuses continue (as they probably will) there will be a new line of reform bills down the line.

Who here thinks that we will see something similar play out in the surveillance theater? A reform is proposed, the surveillance lobby tries to neuter it and succeeds in taking out what it considers the most dangerous parts of it, but there is a small change and then they proceed to ramp up the abuse of the legal exploits they have used so far the public gets even more outraged as the price of the exploits becomes clearer and a new set of reforms is proposed that the surveillance lobby find harder to neuter this time around. Rinse and repeat until the legal side of things is a lot more acceptable to the public.

With all that in mind I eagerly await the Prenda of the surveillance industry.
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Pragmatic, 7 Jan 2014 @ 6:37am

Re: Re: Re: Re: Re:
I haven't decided yet which would be worse: President Biden or President Hillary Clinton.

Biden's in bed with the **AAs and Clinton's in bed with Big Ag and Monsanto.

So much for the liberals. In the red corner there's more crazy than you can shake an AR-15 at. We really need the third parties to step forward to fill the gap, but I'm skeptical that'll happen as the moderates we actually need to run the country have joined the main parties in the hope of getting elected one day... and been corrupted by the system.

We need to stop waiting for someone else to discuss the third parties and their policies, and start doing it ourselves, comparing and contrasting them so we can make the best and most informed choices. The only reason we have a two-party state and no real choice is because we are willing to put up with the situation we've got.
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Pragmatic, 7 Jan 2014 @ 6:45am

Re: Re: Re: Wrong AC @ #1: Next step, MORE surveillance.
*Sigh!* For the umpteenth time, if you tried to impeach Obama, he'd take the Republicans with him as they are all equally responsible for the mess we're in now, okay. It'll never happen.

Meanwhile, they bitch, whine, and throw tantrums in an effort to prevent him from achieving anything while in office and in the hope of making their own candidate look better by comparison. Well, they gave us Gordon Gekko last time. Will he run again or have they got someone equally obnoxious waiting in the wings? One thing is certain; during the last election, they changed the rules to keep Ron Paul from even getting a sniff of a chance at being nominated, and the Tea Party still have a significant say in how things are run. Prediction: expect a similar candidate next time unless a way is found to change the rules back.

I'm not a fan of Ron Paul, but that was a rotten way to treat him and the way it was done was unfair.
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Pragmatic, 7 Jan 2014 @ 6:47am

Re: Re: The corporate president
Damn straight. Even when I'm completely disagreeing with a liberal, if they stick to their principles and are sincere, I respect that. Obama is a wolf in sheep's clothing.
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Anonymous, 7 Jan 2014 @ 8:15am

Re: Re: The corporate president
So, in your opinion, a "step in the right direction" is forcing people to buy something or be penalized, along with higher taxes and fees. And after that (and various other problems), you think Obamacare could and should have been more?! WTF?!
Were you given a chance to vote on Obamacare? Were any of the American people? What, in your opinion, IS "democracy all about"?
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Anonymous, 7 Jan 2014 @ 8:18am

Re: Re: The corporate president
Well, he sure as heck ain't a conservative.
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John Fenderson (profile), 7 Jan 2014 @ 8:43am

Re: Re: Re: The corporate president
He's a right-leaning centrist, if you have to put him somewhere on the (bogus) left-right spectrum.

But, really, he's a corporatist.
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nasch (profile), 7 Jan 2014 @ 4:16pm

Re: Re: Re: Re: Re: Re:
The only reason we have a two-party state and no real choice is because we are willing to put up with the situation we've got.

Our voting system also virtually guarantees it.
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nasch (profile), 7 Jan 2014 @ 7:02pm

Re: Re: Re: The corporate president
Were you given a chance to vote on Obamacare? Were any of the American people?

Were you thinking the US is a direct democracy?
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