Rating Obama’s NSA Reform Plan: EFF Scorecard Explained

Earlier today, President Obama announced a series of reforms to address abuses by the National Security Agency. We were heartened to see Obama recognized that the NSA has gone too far in trampling the privacy rights of people worldwide. In his speech, the President ensured that National Security Letters would not come with perpetual gag orders, brought new levels of transparency and fairness to the FISA court, and ended bulk collection of telephone records by the NSA. However, there is still much more to be done.

We’ve put together a scorecard showing how Obama’s announcements stack up against 12 common sense fixes that should be a minimum for reforming NSA surveillance. Each necessary reform was worth 1 point, and we were willing to award partial credit for steps in the right direction. On that scale, President Obama racked up 3.5 points out of a possible 12.

1. Stop mass surveillance of digital communications and communication records.

Score: .2

There are three types of mass surveillance that we know about that we were using to evaluate Obama’s promises in this category: surveillance of millions of phone records under Section 215 of the PATRIOT Act; surveillance of Internet communications internationally under Section 702 of the FISA Amendments Act; and surveillance of communications overseas under Executive Order 12333.

In order to score a full point in this category, Obama would have needed to declare that the executive branch would no longer be using any of these authorities to engage in mass surveillance. He tackled only one of these issues somewhat: the surveillance of telephony metadata under Section 215 of the Patriot Act. Specifically, he acknowledged the recommendations of his review group that the government cease to collect and maintain a database of all Americans’ telephone records. He is ending that program, which is laudable. However, he left open the door to having telecom companies or another third party maintain a similar set of mass data, so even as to 215, we could not give him the full ⅓ of the point.

2. Protect the privacy rights of foreigners.

Score: .3

All too often, the NSA’s official position is that foreigners—or anybody deemed sufficiently likely to not be a “U.S. person”—are not given any legal protections under surveillance laws. This situation is unacceptable and out of line with international human rights law, as we’ve put forth in our Necessary and Proportionate Principles, now supported by over 300 organizations worldwide. We demanded that individualized targeting be conducted for non-US persons.

Obama nodded a bit to this situation, and proposed that some reforms be made, but did not give real specifics. While he also did not acknowledge any legal obligations, he did recognize a “special obligation” on U.S. intelligence agencies, and specifically called out a new, higher standard on eavesdropping on foreign leaders. But that’s not enough: privacy consideration should not be a privilege afforded only to top officials. Given these small steps forward but ongoing problems, we’ve given Obama .3 points in this category.

3. No data retention mandate.

Score: 0

Obama’s review group recommended that the telephone metadata surveillance program be taken away from the government, suggesting that a third party or even telecom companies themselves be responsible for maintaining a searchable list of our calling records. This approach—mandating companies act as Big Brother’s little helper—won’t alleviate the serious privacy concerns with maintaining a digital record of every call we make.

We had hoped that Obama would make clear that he would reject any form of mandatory data retention. Instead, Obama acknowledged some of the concerns with a data retention mandate but called for  “options for a new approach that can match the capabilities and fill the gaps that the Section 215 program was designed to address, without the government holding this metadata itself.” He never specifically rejected the idea of forcing companies or a third party to hold this data, and so he does not receive a point in this category.

4. Ban no-review National Security Letters.

Score: .5

The President gets half a point here, since he endorsed ending the permanent gag orders that accompany administrative subpoenas known as National Security Letters, under which the FBI can on its own demand information about you from your communications service providers. We still need specifics, and the details really matter—even fixed-length gags would violate the First Amendment, for example, and gags would still need to be approved by courts—but this was a good and necessary step. Obama didn’t get the other half, though, because he did not agree with EFF and his own review panel that NSL