Obama’s surveillance revisions omit limits on warrantless email searches

08/14/2013 6:34 PM

08/15/2013 5:51 AM

In pledging to make changes that could curtail the federal government’s ability to spy on Americans, President Barack Obama failed to address calls by lawmakers and experts to overhaul a law that allows the National Security Agency to search vast databases of individual Americans’ emails without court warrants.

Some lawmakers, technology organizations and civil liberty groups had urged Obama and his top aides to end – or at least limit – those searches at two meetings at the White House last week as the president prepared proposals to dispel criticism of the NSA surveillance programs, according to several people familiar with the sessions.

“There are a lot of questions that the government has to answer about that particular program, and it was disappointing and surprising that Obama failed to mention it” at a news conference Friday, said Jameel Jaffer, the deputy legal director of the American Civil Liberties Union, which was represented at the meetings.

Instead, Obama called on Congress to change the USA Patriot Act, which increased the government’s ability to gather intelligence after the Sept. 11, 2001, terrorist attacks, and the secret court that oversees NSA surveillance programs.

Lawmakers and advocates applauded the president’s first significant comments on altering the programs, but they criticized his actions as being short on specifics and ignoring Section 702 of the 2008 Foreign Intelligence Surveillance Act Amendments.

Sen. Richard Blumenthal, D-Conn., who’s proposed changes to the programs, praised Obama but said he hoped the president would provide specific ideas to Congress or at least offer input on existing legislation. “My hope is there will be more,” he said.

Obama’s remarks came amid rising public consternation over the NSA’s programs after leaks of top-secret documents by former NSA contractor Edward Snowden. The documents showed the NSA is collecting the telephone records of tens of millions of Verizon customers under Section 215 of the Patriot Act, as well as emails through nine companies, including tech giants Microsoft, Yahoo, Google and Facebook, under Section 702 of the FISA Amendments.

Trevor Timm, a digital rights activist with the Electronic Frontier Foundation, a privacy advocacy group, said Obama had no choice but to launch a “public relations campaign” in light of the widespread criticism. “He had to do something,” he said. “He was trying to get out of it the easiest way he can.”

Obama’s proposals came after Chief of Staff Denis McDonough and general counsel Kathy Ruemmler met Aug. 6 with a host of groups, including the Electronic Privacy Information Center and organizations that represent Internet companies, according to people familiar with the meetings. Two days later, Obama met with the CEOs of major communications firms, including Apple, AT&T and Google, they said.

Obama and his staff also spoke to or heard from members of Congress on 35 occasions, including a meeting Aug. 1 between the president and nearly a dozen lawmakers. The White House declined to name those the administration consulted.

Many groups declined to comment on what the White House had asked to be private meetings, but others said administration officials had listened to their concerns about the Patriot Act, FISA Amendments and the secret court.

Gregory Nojeim, the director of the Project on Freedom, Security and Technology at the Center for Democracy and Technology, which was represented at the Aug. 6 meeting, said Obama’s remarks should have addressed Section 702. “His talk was a good start,” he said, “but it does not address bulk collection overseas.”

“It’s not nearly enough,” said Sherwin Siy, the vice president of legal affairs at Public Knowledge, which promotes Internet openness and also was represented at the meeting.

At his news conference, Obama said he still backed the surveillance programs but was trying to strike a balance between protecting Americans and guarding against potential abuse.

“I don’t have an interest . . . in doing anything other than making sure that where we can prevent a terrorist attack, where we can get information ahead of time, that we’re able to carry out that critical task,” he said.

He said he’d declassify documents about NSA programs, create a website to release information, name an NSA civil liberties and privacy officer and appoint a task force of outside experts to review policies. Civil liberties groups criticized the task force because it will report to James Clapper, the director of national intelligence, who’s been accused of lying to Congress about the programs.

The White House declined this week to release specific changes Obama supports in the laws. “He did not make clear the reforms he wants to see, but wants to engage with the Congress,” said Caitlin Hayden, a spokeswoman for the National Security Council.

Hayden said that most of what Obama referred to in his remarks, including the review group, would apply to both Sections 215 and 702, even though the president asked Congress to change only the former.

But among the greatest concerns of privacy groups and lawmakers is Section 702, which Congress passed after revelations that the George W. Bush administration had eavesdropped on Americans’ communications without court warrants in a bid to unearth al Qaida members and sympathizers in the United States.

Section 702 allows the director of national intelligence and the attorney general to issue yearlong blanket authorizations to the NSA to obtain “foreign intelligence information” by targeting the communications of foreigners “reasonably believed” to be outside the country.

The law cannot be used to “intentionally” target U.S. citizens or “any person known to be in the United States,” according to a June 8 fact sheet issued by Clapper’s office. But a secret document that Snowden leaked to The Guardian newspaper showed that the NSA may search – without court warrants – the emails of individual Americans “incidentally” swept up in the monitoring of foreign targets.

Sen. Ron Wyden, D-Ore., has expressed alarm over what he calls Section 702’s “back-door searches loophole,” and he criticized Obama for failing to address it.

The loophole “potentially allows for the warrantless searches of Americans’ phone calls and emails,” he said in a statement. “I believe that this provision requires significant reforms.”

While welcoming Obama’s proposed changes, Wyden upbraided the administration for “not fully” acknowledging the extent to which the NSA has violated secret court orders “and the spirit of the law.”

The Justice Department, in a motion filed last week in a Freedom of Information Act lawsuit, said it would release a Foreign Intelligence Surveillance Court order and another document outlining those violations next week.

"I am still concerned that the DNI has been less than forthcoming about the degree to which the government has collected data on innocent American citizens," Sen. Tom Udall, D-N.M., said Wednesday in a statement.

"I have been calling for an independent investigation by the Privacy and Civil Liberties Oversight Board on the impact the dragnet programs have had on Americans' constitutional rights. I want to see the report on the board's findings."

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