President Barack Obama’s speech on Friday marks a historic step in the continuing discussion of national security, privacy and government surveillance.
The speech was delivered against a background set by numerous proposals, including various bills in Congress and the recommendations of the president’s Review Group on Intelligence and Communications Technologies, on which I served (and most of whose recommendations were endorsed in today’s speech). Seven points in the speech deserve particular attention.
First, the president called for an end to the government’s current storage of “metadata,” information about many millions of calls made by ordinary Americans. (This includes information about the time and date of calls, and the numbers involved; it doesn’t include any content.) He emphasized that the capacity to search metadata is one that must be preserved, but without government itself holding it.
Some people, including members of the Review Group, have proposed that metadata should be held by the phone companies (which have it in any case) or by a new, private entity. The central argument is that government storage contains risks to personal privacy, civil liberties and public trust, and it isn’t necessary for national security purposes (so long as government can obtain access to the information if it shows a need to do so).
The transition to private ownership creates challenges. The phone companies are aggressively resisting this proposal, which they say would impose serious economic and operational burdens on them. The president directed the U.S. attorney general and the intelligence community to report on the best way to transfer the metadata out of government hands, before the program comes up for reauthorization on March 28.
Second, the president announced that in this transition period, the government shouldn’t have access to metadata without judicial approval. As a matter of principle, and unless there is an emergency, public officials should have access to the content of people’s telephone calls only if an independent judge has authorized that access.
Third, the president endorsed the proposal to appoint a public advocate to represent privacy and civil liberties interests before the Foreign Intelligence Surveillance Court. In recent years, the court has been asked to assess some fundamental questions of statutory and constitutional law.
At least in significant cases, the president concluded that it is important to have a genuine adversary proceeding, including a team of lawyers whose mission is to protect privacy and civil liberties. Obama also called for an increase in declassification of the court’s opinions.
Fourth, the president imposed new measures to safeguard the privacy of non-Americans, including foreign leaders. He emphasized that when the U.S. collects information abroad, its goal is to protect national security, not to monitor ordinary conversations, to intrude into private lives, or to track people solely on the basis of their political convictions or religious beliefs.
Importantly, he announced that he would extend privacy safeguards for American citizens to people overseas, limiting how long information can be held and when it can be disseminated. He also directed that without a compelling national security purpose, the U.S. won’t monitor the communications of leaders of our close friends and allies.
Fifth, he announced that communications providers, including telephone companies, would be able to disclose more information about the orders they have received to provide data to the government. The companies have argued strongly for this proposal, in part on the ground that it will show that these orders aren’t common, and that providers are rarely turning over private information to officials.
Sixth, the president called for more transparency with respect to National Security letters, which allow the Federal Bureau of Investigation, without court approval, to obtain access to people’s records (such as their bank and credit card information). He stopped short of endorsing the Review Group’s recommendation that the FBI shouldn’t be able to obtain records without judicial authorization.
Seventh, the president announced the coming appointment of a White House official with the specific responsibility of carrying out the new privacy safeguards.
Notwithstanding the importance of today’s speech, it is hardly the end of the process. Some of the president’s judgments, including the transition of the metadata program, can’t be implemented without congressional action. On these questions, the usual divisions between Republicans and Democrats are confounded, and both alliances and splits have been surprising and unpredictable. The unpredictability creates real challenges, but it also provides promising opportunities for sensible reform.
By Cass R. Sunstein
Cass R. Sunstein, the Robert Walmsley University professor at Harvard Law School, is a Bloomberg View columnist. He is a former administrator of the White House Office of Information and Regulatory Affairs, the co-author of “Nudge” and author of “Conspiracy Theories and Other Dangerous Ideas,” forthcoming in March. ― Ed.