The passing of an anniversary has privacy and security advocates both reflecting and looking forward this month.
On January 17, 2014, President Obama issued Presidential Policy Directive 28 and made a speech on the future of the National Security Agency. Most notable to privacy advocates was his recommendation for Congress to end the NSA’s bulk telephone records program, authorized under Section 215 of the Patriot Act.
The bulk telephone records program collects what is called metadata—call length and number dialed, for example, rather than the substance of the calls themselves. The NSA then analyzes links between callers in order to discern terrorist activity, tracing callers up to two “hops” or phone calls away from the original number.
Many have expressed concerns that Section 215 is a violation of the First Amendment of the Constitution in that it may chill free speech, and a U.S. District Court Judge found it likely violates the Fourth Amendment’s right against unreasonable searches.
In response, the Privacy and Civil Liberties Oversight Board—an independent agency within the executive branch that reviews executive action against terrorism with the aim of the preservation of civil liberties—published a report with reform recommendations a week after Obama issued PPD-28.
And on the anniversary of its first report, PCLOB has issued another report to evaluate the administration’s actions thus far. Now that a year has passed, what is the state of the President’s promises?
In a word, progress is incomplete.
The PCLOB found that the administration was responsive, yet somewhat inactive in implementing its Section 215 recommendations.
The Board’s leading recommendation was to end outright the NSA bulk telephone records program. President Obama agreed that the program should be suspended, but handed off the logistics to Congress.
The President later supported the USA Freedom Act, which essentially aimed to phase out the program, but it fell to a Republican filibuster in November. The administration continues to support the bill, and expects it to be taken up again in the near future.
While noting that the program has never made a concrete difference in the outcome of a counterterrorism investigation, the PCLOB did agree that an immediate shutdown of the program could be disruptive. The Board maintained, however, that they did not recommend legislative action, which is so often stagnated and delayed, to bring about the program’s end. By deferring to Congress for a bill, the administration failed to make progress.
Further complicating matters is the impending expiration of Section 215 on June 1. Before then, Congress will need to reauthorize the Section, allow it to completely lapse, or enact a bill like the USA Freedom Act that would phase the program out.
Pressure also comes from the growing concern about the threat of cyberterrorism, brought to the forefront of public conversation by the recent hacking of Sony Pictures.
During a trip to Silicon Valley last week, the President urged for greater cooperation between government and the private sector in combating these online threats. He also signed an executive order asking companies to join information-sharing hubs to exchange data, and, in some cases, to receive classified information from the government.
The private sector, however, has been largely reluctant to share this kind of information. Companies have argued that these types of regulations would unduly impede business, and that sharing this data would compromise proprietary and customer data.
More significantly, however, government leaks have damaged relations between Silicon Valley and the Obama administration.
Edward Snowden, for example, exposed that intelligence agencies have been using data from companies like Google in their surveillance efforts without their knowledge. Eric Grosse, Google’s vice president of security, said, “The tricky thing with information-sharing is that it is about trust. Information-sharing becomes pretty hard to do once trust is lost.”
When asked about the government’s relationship with Google, the President said:
[T]he Snowden disclosures were really harmful in terms of the trust between the government and many of these companies, in part because it had an impact on their bottom lines. When you look back at what we’ve done, I have constantly tried to update the laws and rules governing how we operate in cyberspace with these new technologies.
In the case of the NSA, we’re probably a little slow. The truth is that what we did with respect to U.S. persons, what we did in this country, was strictly circumscribed. And, generally speaking, I can say with almost complete confidence that there haven’t been abuses on U.S. soil.
Obama dodged questions, however, about Section 215, again insisting that he has placed the ball in Congress’ court.
Leading 2016 presidential contenders are polarized about Section 215 changes. Kentucky Senator Rand Paul voted against the USA Freedom Act for retaining Section 215 for its phasing out period in favor of a bill that would end it immediately.
In contrast, former Florida Governor Jeb Bush said on Wednesday that the program is “hugely important,” so much to the point that, “for the life of me, I don’t understand the debate.”
With so many moving pieces, it’s unclear how the debate will resolve.
Laura Beltz is a pro bono intern at the National Constitution Center. She is also a student at the University of Pennsylvania Law School.
