IU privacy expert: Obama's NSA speech won't calm fears about government overreach

Jan. 17, 2014


BLOOMINGTON, Ind. -- In a speech short on details but long on historic references today, President Barack Obama proposed minor changes to U.S. intelligence gathering while ignoring the vast majority of the 46 recommendations from his own review committee, according to Indiana University cybersecurity and privacy expert Fred H. Cate.

Obama announced what he called “concrete and substantial reforms” to the collection of, storage of and access to billions of records around the globe, including storing data outside of government purview, requiring judicial approval to access it, and greater transparency in the use of controversial National Security Letters.

Cate, who submitted written comments to the president’s review group that established the 46 recommendations, said Obama’s speech did little to curtail the rightful fears of Americans that their personal privacy is being ignored.

"The president repeatedly asserted that the National Security Agency is not spying on 'ordinary people,' without explaining how that comports with the dozens of programs revealed by Edward Snowden that involve collecting billions of records on phone calls, emails, social media postings, contact lists and other communications and activities of people in the United States and around the globe,” Cate said.

Cate noted two ironies: Obama repeatedly said the details of these reforms would be important but failed to provide any himself; and without the disclosure of key documents and programs by Snowden last summer, today’s speech likely wouldn’t have occurred.

"President Obama made it clear that the challenge in balancing national security and civil liberties is getting the details right, but most of the changes announced today were vague or deferred for future study or recommendations," Cate said.

"Today’s speech ignored most of the review committee’s recommendations, especially those on the structure, activities and mission of the NSA," he said. "The huge issue revealed by Mr. Snowden wasn’t just the existence of the far-reaching surveillance programs but a culture and approach of vacuuming up all available data, often in overlapping programs, without a clear mission, legal authorization or clear understanding of the competing interests.

"The president’s unwillingness to adopt any of his own review committee’s recommendations dealing with the mission and oversight of the NSA -- including handing over the NSA to civilian leadership, splitting the agency from the military’s Cyber Command and strengthening the role of the Privacy and Civil Liberties Oversight Board, among others -- shows that the changes proposed today were considerably weaker than promised or than many observers would have wanted," Cate said.

Cate applauded Obama’s resolve to lend greater transparency to National Security Letters and the decision to require judicial authorization before accessing bulk telephony metadata, but he warned that the president’s remarks are only likely to further conflicts with our foreign allies, particularly in Europe.

"President Obama argued that the U.S. is held to a different standard because it has been at the 'forefront of protecting personal privacy and dignity,'" Cate said. "Considering the breadth and strength of data protection laws in Europe and elsewhere, the statement is likely to meet with a tepid reception, if not outright dismissal."

Cate is the C. Ben Dutton Professor of Law at the IU Maurer School of Law and directs the university’s Center for Applied Cybersecurity Research, which is designated by the National Security Agency as a National Center of Excellence in both Information Assurance Research and Information Assurance Education. He is a member of the inaugural U.S. Department of Homeland Security Data Privacy and Integrity Committee Cybersecurity Subcommittee and one of the founding editors of the Oxford University Press journal International Data Privacy Law. He can be reached at 812-855-1161 or fcate@indiana.edu.