The report of a White House advisory group on intelligence surveillance said that reducing undue secrecy was one of its main objectives.
“A central goal of our recommendations is to increase transparency and to decrease unnecessary secrecy, in order to enhance both accountability and public trust,” the report of the President’s Review Group on Intelligence and Communications Technologies stated (p. 80). “Excessive surveillance and unjustified secrecy can threaten civil liberties, public trust, and the core processes of democratic self-government (p. 12)”
The Review Group specifically recommended that “detailed information” about legal authorities to compel disclosure about communications records be made public and that “general data” concerning orders to disclose telephone records and other business records be routinely disclosed as well (Recommendations 7-10).
In a more tentative, roundabout way, the report implied that the NSA program to collect telephone metadata in bulk should not have been classified.
“We recommend that the decision to keep secret from the American people programs of the magnitude of the section 215 bulk telephony meta-data program should be made only with due consideration of and respect for the strong presumption of transparency that is central to democratic governance. A program of this magnitude should be kept secret from the American people only if (a) the program serves a compelling governmental interest and (b) the efficacy of the program would be substantially impaired if our enemies were to know of its existence,” the report stated (Recommendation 11).
But the force of this recommendation is diminished by the fact that the proponents of the NSA telephony metadata collection program clearly believed that both of the stated criteria had been met in that case.
More generally, “There is a compelling need today for a serious and comprehensive reexamination of the balance between secrecy and transparency,” the Review Group stated (page 125).
But the adjectives — compelling, serious, comprehensive — are left to do most of the work here. The proposed reexamination of national security secrecy policy is beyond the Review Group’s scope and is not to be found in this report.
“At the very least, we should always be prepared to question claims that secrecy is necessary,” the report said. “That conclusion needs to be demonstrated rather than merely assumed.”
Not only that, but “Part of the responsibility of our free press is to ferret out and expose information that government officials would prefer to keep secret when such secrecy is unwarranted.”
The Review Group’s most significant recommendation was that the NSA should no longer be permitted to routinely acquire telephone metadata of US persons in bulk, a step that if adopted would significantly transform existing intelligence surveillance programs.
“As a general rule…, 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,” the report stated (p. 17)
One way to appreciate the audacity of the Review Group is to compare its report with the original tasking that it received from President Obama in his August 12 memorandum to the Director of National Intelligence.
“The Review Group will assess whether, in light of advancements in communications technologies, the United States employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust,” the President wrote.
This was a weak formulation that barely specified a coherent problem. But the Review Group took it and ran with it, filling in gaps along the way.
Although the President gave prominence in this one-sentence tasking to “unauthorized disclosure,” that term is only mentioned twice in the 300 page Review Group report (though a revamping of security clearance procedures is the subject of Recommendations 37-41). The matter of “public trust” seemed to be given greater weight and is referenced 18 times.
Meanwhile, although “civil liberties” was not mentioned in the President’s memorandum at all, it appears more than 50 times in the report. And “privacy,” which was likewise outside the Review Group’s explicit terms of reference, is mentioned well over 100 times.
As if to justify its somewhat expansive interpretation of its assignment, the Review Group argued that privacy is actually a type of security.
“The United State Government must protect, at once, two different forms of security: national security and personal privacy” (p. 43). If this seems contrived, the Review Group offered the Latin etymology of the word “securus,” which it claimed encompasses both physical security and personal privacy (p. 45). So…
At any rate, the Review Group exceeded expectations by providing an independent, critical assessment of the issues it was directed to review. Although its non-binding recommendations by themselves do not compel any changes, they already seem to have altered the policy landscape. And together with a December 16 court ruling that NSA bulk collection programs “likely violate the Fourth Amendment,” they appear to have substantially shifted the center of the debate.
Update: Although the President’s August 12 memorandum did not mention privacy or civil liberties, the White House press secretary issued an August 27 statement about the Review Group which did include these terms.
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