President Barack Obama finally has acknowledged that the nation's spying operation needs to be reined in, and his proposals represent measured progress on protecting individual privacy. Ending government control of the phone data of millions of Americans as he suggests and his order that requires a special court's order to access the information are positive steps. But there is more work to be done to better balance national security and individual liberty.
Obama recognized in a major speech Friday that technology is outpacing the law. As a former lecturer on constitutional law, he understands what is at stake when a secret surveillance operates outside public accountability or controls. But while he embraces more checks, he remains unwilling to undo a surveillance apparatus that is intent on vacuuming up ever more private communications and data.
The president's most significant proposal involved changes to the National Security Agency's bulk collection of telephone records. For years, the NSA has been collecting and storing the records of all domestic telephone traffic, information that includes the originating and receiving phone numbers, the location of calls and their duration. The agency uses the metadata to track the phone contacts of suspicious targets and will examine records up to three "hops" away from the original suspect, which could draw NSA scrutiny to a massive number of innocent Americans.
Effective immediately, no longer will the NSA have access to the metadata without an order from the Foreign Intelligence Surveillance Court based on reasonable suspicion. This is welcome judicial oversight, although the secret court has proven to be too friendly to administration data collection efforts. Obama is also reducing the "hops" to two and promising that the government will no longer be the repository of bulk phone records. An alternative will be established by March 28, when the authorization for the current program expires. These are reasonable steps, but they fall far short of ending the program of bulk data collections on innocent Americans.
One of the reasons the Edward Snowden revelations were such bombshells was the intense secrecy surrounding the existence and breadth of NSA spying. No national debate over government intrusion can occur when Americans are kept entirely in the dark. Obama wants to pull back the curtain a bit and declassify the secretive court's rulings that have broad privacy implications. He is directing that an annual review be conducted for that purpose.
One essential reform requires Congress to establish a panel of outside legal advocates who will appear on behalf of privacy rights and civil liberties interests before the court on significant cases. This would make the court more sensitive to individual rights as it weighs new surveillance authorities.
There are many places where Obama should have offered more sweeping changes. For instance he is not recommending that administrative subpoenas called "national security letters" be subject to judicial oversight, as they should. But Congress could press for this and for greater limits on the wholesale collection of bulk data. At least now the long-anticipated conversation has begun.