Editorial: Falling short on privacy

Published Aug. 16, 2013

President Barack Obama acknowledged in a news conference before his vacation that greater openness and added safeguards are needed for the massive surveillance programs conducted by the National Security Agency. The president said he understands concerns about potential abuse and presented a series of reforms. But Obama is not calling for substantive changes in the way the NSA spying programs operate, and his commitments fall short of adequately addressing privacy concerns.

The administration has been doing damage control since former NSA contractor Edward Snowden, now a fugitive in Russia, leaked information that the agency was collecting American telephone "meta data" and much of the world's Internet traffic, including communications between people overseas and in the United States. The revelations sparked members of Congress from both parties to call for limiting the programs and boosting the ability of the secret Foreign Intelligence Surveillance Court, which is charged with overseeing spying operations, to be a more potent watchdog.

Obama vowed to work with Congress to add greater oversight to the phone records collection program, possibly through new constraints on the use of Patriot Act authority, among other promising reforms. But it also takes empowered courts to limit government spying. Currently, only the Justice Department appears before the FISA court, resulting in predictably one-sided rulings. In the last three years, the court approved every one of the 5,180 surveillance requests placed before it, with one FISA application withdrawn and modifications made to 40 more.

The court effectively put no limits on the collection of vast databases of domestic calling logs — information on what phone numbers were called and received from specific phone lines, when, and for how long — under a provision of the Patriot Act that lets the government collect business records relevant to a terrorism investigation. (This is the provision Obama singled out to say he would be open to new constraints.)

Obama recognized the concerns that the court "only hears one side of the story" and called for an advocate in the FISA court to argue against the Justice Department in cases that propose an expansion of spying authority or adoption of a new program. That would be a welcome development, and it demonstrates the president is hearing the criticism that dragnet NSA surveillance programs ignore traditional limits on government spying. But the proposals don't go far enough, and Congress should demand more when it returns from its August recess.