16 October 2014

In late August 2013, President Obama announced a review panel on the intelligence community in the wake of Edward Snowden's revelations. The panel, which the president described as composed of outsiders, was actually composed of intelligence community and Obama administration insiders and delivered the whitewash that many observers expected.

The panel, according to panel member Cass Sunstein, was “not thinking in constitutional terms,” and gave the president cosmetic recommendations that would do little to materially reduce the fine scrutiny that the NSA has placed the entire world under. According to a New York Times analysis of the president's speech, and the Free Press's examination of the accompanying presidential policy directive, President Obama seems to be resolved to apply a much thinner veneer of cosmetics than even his cherry-picked panel advised.

The language of the presidential directive makes the reasons for the panel clear. The president acknowledged the long-standing desire for wiretapping powers and capability by the executive branch. He then immediately outline the risks, noting “…intelligence activities and the possibility that such activities may be improperly disclosed to the public, pose multiple risks.” The perceived risks enumerated also included the reduced willingness other countries to cooperate with United States intelligence activities, the reduced willingness of other countries to do business with American firms and “the credibility of our commitment to an open, interoperable, and secure global Internet.”

Careful parsing of what the panel recommended and what the president endorsed was as revealing as the composition of the panel that produced the lukewarm recommendations. Operational considerations such as reducing the use of zero-day attacks (penetrations of previously unknown software flaws), the deliberate weakening of commercially available encryption standards (something the NSA is alleged to have been doing since at least the 1970s) and removing the United States Cyber Command from the NSA were recommendations that were discarded or not addressed by the president in his speech or the accompanying policy directive.

The panel's recommendations for continued private sector participation met with contradictory denials and endorsements while apparently founded on muddled or non-existent principles. The panel called for little or no involvement of contractors in background checks for security clearances. The rationale might have been budgetary, or the need for this task to be government-controlled, but no database check can look into a person’s soul and find their inner whistleblower. The intimate details of a person’s character and background will still be searched by private corporations when they apply for government jobs.

The contradictory recommendations regarding the private sector seem hard to implement individually or wholesale. The recommendation that the NSA not house data on American's itself, but house it with a trusted private third party was considered by the administration. This data could be stored by telephone and internet providers individually, or be stored by a single company hired for the task. Obama thinks this is a great idea, but wants more dialogue with the NSA and Congress on how to implement it.

It is not clear which Silicon Valley tech titan will be contracted to replace the NSA's yet uncompleted billion-dollar data center in Utah. Congressional wrangling and federal contract procedures might keep the data in the hands of the companies that generate it and therefore in the hands of the NSA and the sands of Utah. The panel's recommendation that the content of emails and phone calls sent and received by people around the world and captured by the NSA be stored for only two years instead of five was not endorsed by the President. This five-year storage capacity may yet prove costly for taxpayers when it is duplicated in the private sector at their expense.

The panel proposed that the secret FISA courts issuing warrants permitting NSA wiretapping should be advised by a privacy advocate be there argue against the government's warrant request. Obama instead went with the idea that there will be a panel of privacy advocates that will sound off on a case if the court asks them to argue against the government. The Foreign Intelligence Service Act (FISA) courts have turned the government down on less than one percent of the warrants it has ever wanted. Obama's proposal may stimulate the economy by providing high paying classified jobs to well-connected lawyers-turned-privacy advocates who will have little to do but warm seat cushions while playing free-cell at taxpayer expense.

The panel also recommended that the FBI be required to go to court to get a national security letter to seize internet communications by a person from their provider. Currently the FBI can issue such a letter without court review and the provider is under a gag order to not tell that they have been served with such a letter. The FBI uses this warrant-less wiretapping power hundreds of times a day. Obama rejected this recommendation and instead set limits on how long a gag order might last. Already at least one provider of secure email services, Lavabit, has gone out of business rather than be served with a letter, claiming that their integrity was more important than their continuing to provide service.

Obama's directive and the panel's recommendations did not in any way address the NSA giving tips to the FBI, which happens several times daily according to a report on Arstechnica. Neither the panel nor the president addressed the collection of biometric data from gamers. The president and his handpicked panel made no mention the NSA turning over records to the IRS and the DEA. The claim all along has been that only metadata is collected, not content. The panel only addressed metadata, and continued to ignore the fact that content is collected, and is saved. If it were not there would be nothing for the NSA to share with the IRS and DEA.

Obama's handpicked panel of “outsiders” included people who work just outside the Oval office. Career intelligence officer Michael J. Morrell was on the panel. Morrell has twice been acting director of the CIA. He has also been Deputy Director of the same agency. His appointment to that position was a slam dunk after serving the CIA officer who briefed George W. Bush daily and as George Tenet's executive assistant. Morrell's former boss, General Hayden, who headed both the NSA and the CIA neatly summed up Obama's intention to keep the meat and bones of the surveillance state intact even if the surgeons need to nip, tuck and Botox some skin. In an interview with NewsMaxx Hayden mused "But, fundamentally, he wants to keep it. And that might be the cause of some of the confusion that folks who listened to the speech had."