In a major speech delivered at the U.S. Department of Justice on January 17, 2014, President Obama addressed the call for reforms to government surveillance programs following disclosures regarding National Security Agency (“NSA”) activities leaked by Edward Snowden since June of last year. The President discussed the need to advance national security while strengthening protections for privacy and civil liberties, improving transparency in intelligence programs, engaging in continual oversight and rebuilding trust among foreign leaders and citizens. He outlined several areas of reform:
- A new Presidential Directive on domestic and overseas signals intelligence activity is intended to strengthen executive branch oversight and ensure that such activities take into account security, trade and investment relationships with foreign countries, as well as privacy and civil liberties. Under this Directive, the Administration would strengthen privacy protections for foreign leaders and citizens in connection with signals intelligence activities overseas.
- Greater transparency in surveillance activity and improved safeguards for the privacy of U.S. persons. This includes the declassification of Foreign Intelligence Surveillance Court (“FISC”) opinions that have broad privacy implications, and a call to Congress to authorize the establishment of a panel of advocates from outside the government to argue significant cases before the FISC.
- Reforms to activities conducted under Section 702 (i.e., the PRISM Program) that would place additional restrictions on the government’s ability to retain, search and use in criminal cases the communications of Americans that were collected incidentally pursuant to this law.
- Amendments to the way in which the Department of Justice uses National Security Letters so that communications service providers may disclose to their customers that they were the subject of a National Security Letter after a fixed period of time, unless the government demonstrates a need for secrecy.
- Changes that would allow communications service providers to make public more information about electronic surveillance orders that they have received from the government.
- Significant reforms to the bulk collection of telephone metadata records under Section 215 of the USA PATRIOT Act. This program creates a database of phone numbers and the times and length of calls that can be queried when the government has a reasonable suspicion that a particular number is linked to a terrorist organization. The reforms would preserve the current program’s capabilities, but the government would not hold the bulk metadata. The President did not specify which institutions or industry would hold the data, and called on the Attorney General and the Director of National Intelligence to develop options for this new approach.
- The designation of a senior state department officer to coordinate diplomacy on issues relating to technology and signals intelligence.
- A comprehensive review of big data and privacy led by the White House.
The President’s speech portends a major shift in the role of industry in data collection activities relating to national security. If these reforms go through, industry will enjoy greater flexibility to share information about National Security Letters with affected customers, and to disclose information about electronic surveillance orders with the public. That said, industry also will take on a significant burden with respect to the retention of telephone and other records, which may be expensive and could have privacy and cybersecurity implications.