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OpEdNews Op Eds    H2'ed 1/20/14

Rating Obama’s NSA Reform Plan: EFF Scorecard Explained

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Author 89885
Message Electronic Frontier Foundation

The FISA Improvements Act seeks to codify into law the NSA's controversial and illegal practice of collecting and storing the telephone records of hundreds of millions of Americans. While Obama's administration had earlier indicated support for the bill, today's announcement made clear that Obama was not going to support this program going forward and thus was not supporting the FISA Improvements Act. We would have preferred it if Obama had stated clearly that he would veto any bill that attempts to codify mass telephone metadata surveillance, but we felt this was good enough to merit a point.

7. Reject the third party doctrine.

Score: 0

The third party doctrine is an outdated and deeply problematic legal theory that wipes out many of the privacy protections we could otherwise enjoy. It's the shaky foundation on which some of the most invasive programs by the NSA and other law enforcement agencies rest. Obama should have said that we have a reasonable expectation of privacy in data even though we've trusted third party service providers with it--instead, he was silent on the issue.

8. Provide a full public accounting of our surveillance apparatus.

Score: .5

In our criteria, we asked that Obama "appoint an independent committee to give a full public accounting of surveillance programs that impact non-suspects around the world" and that this committee "directly engage whistleblowers like Thomas Drake, William Binney, Edward Snowden and others, and include independent technological experts."  For this category, we awarded Obama with a half point because he did appoint his counsel, John Podesta, to lead "a comprehensive review of big data and privacy." However, it remains to be seen whether this committee will actually provide a full public accounting or engage with the whistleblowers who have much to contribute.

9. Embrace meaningful transparency reform.

Score: 0

Fundamental to all of the problems surrounding NSA spying is the fact that the government's notorious secrecy shields it from any sort of meaningful oversight or accountability. This appears, among other places, in the overclassification of documents that should not actually be secret, in the executive branch's ruthless campaign against whistleblowers, and in its continued abuse of the "state secrets" privilege in the courtroom. Obama could have announced changes to these secrecy standards, embracing transparency as a default, and making some good on his now laughable election promise to be "the most transparent administration in history." Instead we got nothing.

10. Reform the FISA court.

Score: 1

We gave Obama a full point for these reforms, since he embraced both independent advocates for the FISA court and an annual process of review of FISC decisions for declassification. While we would like the review to be more current, and there is much to be done to ensure that the independent advocacy panel has a real, unfettered role, Obama's announcement indicated a good direction on both.

11. Protect national security whistleblowers.

Score: 0

Obama was clear: "One thing I'm certain of, this debate will make us stronger." And there is little question that this debate would not have happened without the evidence brought to light by Snowden and other whistleblowers. It might seem that Obama would have some recognition that, but for these individuals, we would not be having this important debate.

Sadly, Obama's speech today gave no indication of a change in strategy in his administration's war on whistleblowers. If Obama welcomes this debate, he should stop his attack on the people who have risked so much to help make it happen.

12. Give criminal defendants all surveillance evidence.

Score: 0

It's a cornerstone of our justice system that the accused have the right to see all the evidence against them. That made it very alarming when we learned that the NSA was collecting intelligence and then laundering it into criminal investigations by the Drug Enforcement Agency and other law enforcement groups. This practice conflicts with the protections enshrined in the Fifth and Sixth amendments, and should be stopped immediately. While Attorney General Holder has promised to review the cases, the Administration has not promised to ensure that everyone whose information was shared with law enforcement agencies by the NSA ultimately gets notice. Obama didn't mention this necessary measure in his speech, and gets no points.

Reprinted from eff.org

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