Update: Obama’s NSA proposals underscore reform challenges

President Obama’s proposals Friday to reform the National Security Agency’s surveillance practices reflect the enormous challenges the administration faces in finding the right balance between national security needs and privacy and civil rights concerns.

Advocates of major NSA reform have already dismissed the proposals as too meager to effect meaningful reform. Others, meanwhile, are sure to worry about the changes affecting the ability of the NSA to do its mission.

“There is no pathway that will satisfy both the national security advocates and the privacy advocates,” said Alan Paller, director of research at the SANS Institute. “So instead of trying to find one, [Obama] is trying to do the right thing.”

Neither side is likely to be happy because the impact of the reforms will be controlled by the details, Paller said. U.S. security agencies, for instance, are sure to hate Obama’s proposal to permit third parties to control phone metadata records. Privacy advocates won’t like the expedited judicial review processes that will need to be put in place to allow NSA rapid access to the metadata, he said.

“And Congress is speaking with so many voices that it is unlikely a coherent plan will arise from that quarter,” Paller said.

Obama called for a series of changes to the NSA’s surveillance practices in response to concerns raised by NSA contractor Edward Snowden’s leaks about the agency.

The most significant of these changes pertains to the NSA’s controversial metadata program under which the agency for the past several years has been collecting telephone numbers and other details on all phone calls made by U.S residents.

The NSA claimed the data is vital to help it identify U.S. residents who may be communicating with terror suspects based outside the country. Privacy and civil rights advocates have slammed the program as illegal and unconstitutional.

In his remarks Friday, Obama reiterated the importance of the metadata collection effort but said he was ending the program as it stands. Instead of the NSA’s holding on to the data records, the government will implement a new approach under which telecommunication companies or another third party will retain the bulk phone records and make them available to the NSA under court order.

The transition won’t be simple and poses its own set of privacy and legal challenges, the president cautioned. “Any third party maintaining a single, consolidated database would be carrying out what is essentially a government function with more expense, more legal ambiguity, and a doubtful impact on public confidence that their privacy is being protected,” he said,

Effective immediately, the NSA will be allowed to query the database only after getting proper judicial approval. Even then, the agency will only be allowed to search for phone records that are two steps removed from a number associated with a terrorist, instead of the current three-step standard, the president said.

Obama said he has also issued a new presidential directive that would strengthen executive branch oversight of the country’s intelligence activities and provide greater transparency over surveillance activities. Going forward, the director of National Intelligence will work with the U.S. Attorney General’s office to annually review and declassify any future opinions of the Foreign Intelligence Surveillance Court that have broad privacy implications, he said.

Obama noted that he has also called on Congress to authorize the creation of a panel of privacy and civil rights advocates to provide an independent voice to significant cases before the FISA Court.

The changes “will leave everyone a little dissatisfied, which means [Obama] got it about right,” said James Lewis, senior fellow and director at the Center for Strategic and International Studies (CSIS).

Lewis, who was part of a team that provided a set of cybersecurity recommendations to the Obama transition team during his first term, said the proposals are balanced and reflect the realities of trying to balance national security needs with privacy concerns. The proposals show a pragmatic level of support for privacy needs while also ensuring that counterterrorism efforts are not held to higher judicial standards than other crimefighting efforts, he said.

Greg Nojeim, senior counsel for the Center for Democracy and Technology in Washington, said the President’s proposals address some issues while leaving many others untouched.

“There were some important statements … but there wasn’t meat on the bones,” he said.

For example, Obama’s move to end the NSA’s bulk phone records collection program is a positive step. “But he left open the question of what would replace it,” Nojeim said.

Obama has made clear that he agrees with the NSA’s assessment about the need to collect the metadata. The only real question is about who should hold that data and how it should be queried. The proposed reforms do not offer a clear picture about how those details will be worked out, he said.

The President’s proposal to amend how the FBI uses National Security Letters (NSL) to get companies to provide information is welcome because it promises more transparency over the use of such letters, Nojeim said. Even so, the proposal falls short because the FBI will still not required to obtain judicial review before issuing NSLs.

“It was also disappointing that the speech didn’t address key Interent security and encryption issues,” he said. “The NSA has done a lot to undermine communication security…but the President didn’t say anything about that.”

Others, though, see some of the measures as potentially worrisome for the NSA and other intelligence agencies. And some feel that the idea of having a third-party hold metadata for the NSA could be difficult to implement.

Obama himself alluded to some of the legal ambiguities and cost issues that could arise from having a third party maintain a single consolidated database of phone record information. Forcing phone companies to hold the data could also be problematic for the same reasons.

Ending the metadata program as it now stands may be the “right political move for public purposes,” said Scott Vernick, an attorney at Fox Rothschild in Philadelphia who specializes in online privacy and rights issues. “But it could put our country in a more vulnerable position,” by making it more difficult for the NSA to access the data.

“By punting the decision to Congress about whether the data should instead be held by telecommunications companies or transferred to a third party, it will effectively keep the current aspects of the program running until a ruling is made,” Vernick said.

This article, Obama’s NSA proposals underscore reform challenges, was originally published at Computerworld.com.

Jaikumar Vijayan covers data security and privacy issues, financial services security and e-voting for Computerworld. Follow Jaikumar on Twitter at @jaivijayan or subscribe to Jaikumar’s RSS feed . His e-mail address is jvijayan@computerworld.com.

See more by Jaikumar Vijayan on Computerworld.com.