• Review
proposes greater authority for spying on foreign leaders
•
Government 'should be banned from undermining encryption'
• Forty-six
recommendations in 300-page report released early
 |
| Barack Obama will read the report over the holidays before deciding which recommendations he will choose to accept. Photograph: Zhang Jun/Xinhua/Corbis |
The
National Security Agency should be banned from attempting to undermine the
security of the internet and stripped of its power to collect telephone records
in bulk, a White House review panel recommended on Wednesday.
In a
300-page report prepared for President Obama, the panel made 46
recommendations, including that the authority for spying on foreign leaders
should be granted at a higher level than at present.
Though far
less sweeping than campaigners have urged, and yet to be ratified by Obama, the
report by his Review Group on Intelligence and Communications Technology comes
as the White House faces growing pressure over its so-called “bulk collection”
programs from US courts and business interests.
Earlier this
week, a federal judge ruled that the bulk collection program was likely to be
in violation of the US constitution, describing it as “almost Orwellian” in
scope.
The White
House was stung into releasing the report weeks earlier than expected after
meeting America’s largest internet companies on Tuesday. The firms warned that
failure to rebuild public trust in communications privacy could damage the US
economy.
In its
report, the review panel, led by former security officials and academics
including the husband of one of Obama's top advisers, said the NSA should be
removed of its power to collect the metadata of Americans' phone calls.
Instead, it suggested that private companies such as phone carriers retain
their customer records in a format that the NSA can access on demand.
This is
likely to anger the intelligence community, which argues for direct access, but
also fall foul of telephone companies, who have privately warned those drafting
more ambitious reforms in Congress that such a scheme would be impractical and
dangerous.
“In our
view, the current storage by the government of bulk metadata creates potential
risks to public trust, personal privacy, and civil liberty,” says the report.
“The government should not be permitted to collect and store mass, undigested,
non-public personal information about US persons for the purpose of enabling
future queries and data-mining for foreign intelligence purposes.”
It also
proposes continued NSA spying on foreigners, merely requiring higher clearance
to “identify both the uses and the limits of surveillance on foreign leaders
and in foreign nations.”
On the
security of the internet, the report says the US government should not
"undermine efforts to create encryption standards" and not
"subvert, undermine, weaken or make vulnerable" commercial security
software.
The
Electronic Frontier Foundation, one of the privacy advocates suing the Obama
administration over the bulk surveillance, expressed disappointment with the
review group report. “The review board floats a number of interesting reform
proposals, and we're especially happy to see them condemn the NSA's attacks on
encryption and other security systems people rely upon,” attorney Kurt Opsahl
said.
“But we’re
disappointed that the recommendations suggest a path to continue untargeted
spying. Mass surveillance is still heinous, even if private company servers are
holding the data instead of government data centers.”
After
meeting the report’s authors on Wednesday, the White House said Obama would be
taking a copy with him to read over Christmas and would decide which
recommendations to accept before delivering his state of the union address on
January 28.
“It's an extremely
dense and substantive exercise, which is why, in response to a 300-plus page
report with 46 recommendations, we are not going to come out with an assessment
five minutes later,” said spokesman Jay Carney.
Carney
acknowledged there was “no question” that the Snowden disclosures had helped
lead to the review process and “heightened focus here at the White House and
more broadly in the administration, around the United States and the globe.”
For months,
the NSA, the phone companies and reform-minded legislators have doubted the
viability of having the phone companies store call data on the NSA's behalf.
The NSA has
pointed to cumbersome and varied file formats that prevent analysts from
quickly searching through the companies' data troves, particularly those
proprietary to the telecos. They have also fretted that the companies only keep
customer data for 18 months, while they argue they need a historical database
of every domestic call going back as few as three years and as many as five.
The companies
themselves fear expensive legal and technical morasses that mass data storage
on behalf of the NSA may portend.
Meanwhile,
civil libertarians and reform-minded legislators believe the databases
themselves are problematic. Having the phone companies store them, to provide
access to the NSA, is insufficient, they believe.
“Bulk
collection of personal data should simply end,” said Alan Butler, an attorney
for the Electronic Privacy Information Center.
It remains
to be seen whether the legislators behind the USA Freedom Act, the major
legislative vehicle before the House and Senate to end NSA domestic bulk call
data collection, will be satisfied with the proposal. But at least one member
of the House intelligence committee who has sided with the reformers,
California Democrat Adam Schiff, called it a “very positive step” and urged
Obama to get out in front of the coming swell of legislation.
“With the
strong likelihood of congressional action, as well as a recent adverse decision
by a federal district court judge, I believe the president would be well served
to take the advice of the board and restructure the program as soon as
possible. It would be better to have this undertaken in an orderly and expeditious
fashion, than to wait for it to be compelled by the Congress or the courts,”
Schiff said on Wednesday.
The White
House has said Obama will not decide on which of the panel’s reforms to
implement until the new year. But last week, the administration decided against
one of its recommendations, that would split the NSA from the US military’s
Cyber Command.
The
decision was reached, White House officials said, because Cyber Command’s task
of protecting US military networks from hostile attack and launching wartime
online counter-attacks is too ambitious for Cyber Command, which only became
operational in 2010.
Accordingly,
the NSA director will remain a military general or admiral, contradicting the
review group’s recommendation that a civilian should take the helm of the
world’s largest spy agency.
Civil
libertarian groups have been skeptical of the report for months, fearing that
the White House established the insider panel to give Obama and the NSA cover
to implement merely cosmetic changes. Advisers to the panel have told the
Guardian since September that the panel was stopping well short of meaningful
privacy reforms.
As late as
Sunday, White House officials told reporters that the report would not be
released until January. But in the days since, the NSA and the Obama
administration have been buffeted by criticism, from a widely ridiculed 60
Minutes documentary on the NSA, to Judge Richard Leon’s scathing ruling, to the
tech giants’ impatience with the surveillance agency.
The
report’s authors were Richard Clarke, a former US cybersecurity adviser;
Michael Morell, a former deputy CIA director; Geoffrey Stone, a University of
Chicago law professor; Peter Swire, who served earlier on Obama's national
economic council; and Cass Sunstein, a Harvard law school professor who is
married to UN ambassador Samantha Power.
Just before
the White House released the review's report, a different group advising Obama,
the Privacy and Civil Liberties Oversight Board, which has held public hearings
into the NSA for months, announced it will release two studies of its own, one
into bulk collection of domestic phone data and the other into bulk foreign
communications collection.
The
reviews, due around late January and early February 2014, will also assess the
operations of the secret Fisa court overseeing surveillance and provide
"recommendations for legislative and program changes," the board
announced on Wednesday afternoon.
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