I have a post on Foreign Policy arguing that there was a substantial disconnect between theory and practice in President Obama’s NSA speech yesterday. On the one hand, President Obama’s speech offered a persuasive case for why new privacy rules are needed for the digital age. On the other hand, the reforms he offered were paltry, and left mass surveillance in place. Is this what happens when the constitutional law professor meets the national security state?
Consider what he acknowledged. First, that technological advances, by dramatically reducing the physical and practical constraints on government surveillance, require us to rethink the rules that govern the surveillance that the state is authorized to conduct. Second, that the capability to track terrorists around the world is also the capability to track ordinary law-abiding folks around the world. Third, that intelligence agencies will always err on the side of over-collection. Fourth, that transparency is critical if the intelligence community is to be properly limited. And fifth, that there is a big difference between the government having access to all the digital data we generate and Google or other private companies having that information.
Yet his reforms left in place the mass collection of data on every American’s every phone call, the Section 702 program’s authorization to listen in on the communications of anyone the NSA thinks is a foreigner abroad, and the NSA’s practices of breaking into Google’s and Yahoo’s communications hubs, sweeping up massive amounts of information on ordinary folks. In short, he did almost nothing to challenge the paradigm of dragnet surveillance that the NSA and advanced technology have ushered in.
Perhaps this was to be expected. After all, only the very naïve would think that the national security state could be easily tamed. But it underscores the need for further reform, and further political pressure. Just as with closing Guantanamo, the president can’t do it on his own.