Civil Liberties Advocates Say Obama's Proposed NSA Surveillance Reforms Don’t Go Far Enough

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Posted Aug. 14, 2013

Interview with Kade Crockford, director of the Technology for Liberty project at the ACLU of Massachusetts, conducted by Scott Harris

NSA

It wasn’t long after a surprisingly close vote on legislation in the U.S. House of Representatives that would have defunded the National Security Agency surveillance program that collects massive amounts of data on U.S. citizens’ phone communications, that President Obama came forward in an Aug. 9 press conference to propose his own set of reforms to his administration’s spy programs.

While the president rejected the assertion by many that Edward Snowden, the former NSA contractor who leaked details of his former employer’s surveillance programs was a hero, it was clear that Snowden's revelations were driving the debate on reform in Washington and around the country. Specifically, the president proposed revising Section 215 of the Patriot Act - that gives the government broad authority to collect phone communications records. Obama said he would work with Congress to reconstitute the secretive foreign intelligence surveillance (FISA) court, which grants the NSA legal authorization for its bulk collection of phone and Internet data, to make it more adversarial – and establish a civil liberties advocate to have an unspecified role during court proceedings. Lastly, the president said he’ll require more transparency of the surveillance programs and create a panel of former intelligence officials and privacy advocates to assess the NSA programs and suggest futher reforms.

Between The Lines’ Scott Harris spoke with Kade Crockford, director of the Technology for Liberty project at the ACLU of Massachusetts who assesses the shortcomings in President Obama's NSA reform proposals and suggests the most effective path to safeguard national security without sacrificing liberty and the right to privacy.

KADE CROCKFORD: It's a good thing that president is talking about reforming the surveillance state. It's really unfortunate, however, that his comments were pretty duplicitous, actually. The president only spoke to the 215 program, which is Section 215 of the USA Patriot Act. And this is the statute that authorizes the bulk records collection. For example, the Verizon business order that was disclosed by Edward Snowden and published by The Guardian newspaper.

This kind of order that enables the government to collect in bulk all of them, our of phone records. This is authorized under the 215 program and unfortunately, what President Obama did not say about the 215 program is that it's going to end. The president and the national security establishment appear to believe that this is a necessary instrument in the service of protecting the country. This, although they have not provided any evidence that this is actually the case. The couple of cases that the officials like to trot out in fact are not evidence that 215 was instrumental in there not being any terrorist plots.

And the other proposals that he made are pretty decent, clearly we need more transparency and his comments are pretty vague, so we don't know exactly what he means by "more transparency." You know the idea to have something of an investigation, an inquiry into NSA surveillance is a really big one. The tricky part is, "who's going to be doing that oversight." That is actually really critical. As James Clapper, the head of, the director of national intelligence, is he going to be doing that oversight? I would suggest that's not proper oversight. Someone externally should be investigating. Certainly, the Church Committee in the 1970s, which investigated the COINTELPRO abuses, and NSA abuses, when the NSA was turning its surveillance equipment at the time on American antiwar activists, for example. The Church Committee exposed a lot of those abuses and led to substantial reform for the surveillance state. I do not think that such an inquiry, if it is led by somebody like James Clapper, or former NSA director Michael Hayden would do such a thing. So we really need more details about what the president means with respect to any kind of inquiry.

And finally, the FISA court proposal is a good one, but it's only really a good one if we have changes to the laws that enable the government to conduct broad, warrantless surveillance of Americans. We really have to get rid of Section 215 of the Patriot Act. It should be repealed as well as something the president completely avoided in his remarks, which is 702 of the FISA Amendments Act, and this is the pernicious statute that authorizes warrantless surveillance of the content of Americans' communications, of our international communications. It's the statute that authorizes things like the PRISM program. So the president didn't even mention that at all, and this is troubling in the extreme.

BETWEEN THE LINES: President Obama says he's long an advocate of reforming these surveillance systems, indicating that Edward Snowden's revelations to The Guardian newspaper, the Washington Post, and others, really have nothing to do with it. Why don't you give us your take? What role do you think he played in provoking the White House, the president, to come out with these reform proposals?

KADE CROCKFORD: Well, Edward Snowden clearly played a very essential role. I think everybody in the country is incredibly attuned to the kind of surveillance that the NSA has been conducting only as a result of Edward Snowden's leaks, as a result of him blowing the whistle to the American public about what our government has been doing in the shadows for a number of years.

BETWEEN THE LINES: Kade, what is your prescription for effectively reforming or transforming the nation's surveillance programs to both respect privacy and free speech, while giving the government tools it says it needs to prevent terrorist attacks and other threats?

KADE CROCKFORD: Well, the Fourth Amendment really is the gold standard of American justice. And there's no reason why any surveillance programs can't comport (agree) with the Fourth Amendment. No judge is never going to refuse a legitimate request for surveilling people who the government reasonably believes are involved in some kind of terrorist activity. It's just like a criminal case, right? So the real issue is that we really need to repeal Sections 215 of the Patriot Act, again which is the program that authorizes this bulk record collection. And I just want to say very quickly that Ron White has hinted that it's not just phone records, but may be as well be credit card records in bulk, banking records in bulk, medical records in bulk, even location records in bulk. So we need to repeat Sections 215 of the Patriot Act as well as repeal Section 702 of the FISA Amendments Act, which is what authorizes PRISM, and the warrantless content collection.

Find links to groups actively working to defend civil liberties by visiting the Technology and Liberty project at the Massachusetts chapter of the ACLU at aclu.org/technology-and-liberty.

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