Lies, lies, and more damned Washington lies: Why you shouldn't expect much on NSA 'reforms'

Summary:What's to say the White House won't keep its spying efforts from ticking over as it did before the Snowden revelations came to light?

nsa-ops
Image: National Security Agency

A painful political pill to swallow washed down with bitter reality: President Barack Obama's second-term legacy (which will likely overshadow his first ) is about as secure as the 1.6 million documents stolen by former U.S. government contractor Edward Snowden.

There is a chance for him to come out of this looking like the good guy. After all, he inherited the National Security Agency (NSA) as we see today from the political leftovers from President George W. Bush, who ramped up the surveillance efforts — though arguably, it started way back with Truman in the early 1950s.

Obama is expected to make a "definitive statement" on Friday about the results from a panel group, which late last year made more than 40 recommendations to the U.S. government's intelligence gathering policies, in efforts to appease displaced diplomatic relations while balancing Americans' privacy and security.

Exactly what that statement will outline remains widely unknown.

Obama will, according to reports, pass much of the buck on any sweeping overhauls of the laws that give the NSA authority to vacuum up massive amounts of data on foreigners and even Americans for Congress. We may even see an attempt to sooth international relations with allied partners by increasing protections for non-Americans living outside the U.S., despite much of the Western world carrying out its own domestic or foreign surveillance programs under the guise of their own respective national securities.

As the Associated Press reported, any such decision is squarely put in the hands of lawmakers "who are at odds over everything from whether the collections should continue to who should house the data."

Certain kinds of surveillance will likely be reined in, such as that on foreign leaders, and further limits on what data the NSA can collect — including changes to the search capabilities of American phone records. Other reports suggest that while the NSA may still collect U.S. citizen and resident data, a separate search warrant would have to authorize its access unless a "national security emergency" case was cited. Which, frankly, is back to square one of loose definitions that could be open to abuse once more.

But considering how well Washington has conducted itself in recent months, compounding lies with more lies in efforts to appease the critics with (at very least the surface appearance) of reform and change, while balancing the need to protect national security and global economic and political interests, there is only one viable option.

Do nothing, and carry on spying.

Surveillance snowballs: From Room 641a to PRISM

Take a step back to 2006, where the pre-Snowden White House last suffered an intelligence-related controversy when a whistleblower lifted the lid on the Bush-era mass surveillance efforts.

Read this

Latest NSA leak details PRISM's bigger picture

Another leaked batch of top secret slides relating to the U.S. National Security Agency's PRISM data collection program sheds further light on how non-U.S. data is collected from various tech firms, and how under law, U.S. data is filtered out — albeit not always.

Dubbed "Room 641a," AT&T engineer Mark Klein blew the whistle on the NSA's involvement in domestic wiretapping, and claimed that the agency diverted Internet traffic through a splitter cabinet in a secure, locked room, which was to be used only by U.S. government personnel.

As a result of the scandal, Congress killed off the ability for law enforcement and intelligence agencies to spy domestically by passing the FISA Amendments Act. And yet, there's ample evidence nonetheless from the Snowden leaks that Americans have still been caught up in the massive data-slurping dragnet .

A mere seven years later, the NSA's surveillance capabilities are spread out (and with more on the way) on the world stage for everyone to see. From nefarious programs such as PRISM to phone tapping, software backdoors, and wide-scale botnets , whether or not the 2006 case actively helped the NSA spy domestically and the rest of the world, any legislative action by Congress certainly didn't prevent it from developing further.

The FISA Amendment Act 2008, introduced and designed to prevent domestic spying, which included Section 702 that resulted in the authorization of programs like PRISM and Upstream fiber cable tapping, will run until 2017, unless Congress intervenes and replaces it with something else.

Don't be too skeptical, though. It was the same Congress that shut the government and most of its services down for more than three weeks in late 2013 (although not the NSA, though it did hamper reform efforts) because lawmakers couldn't agree on federal spending. Based on that alone, by the time the Washington bureaucrats actively come to a collective conclusion, the six-year-old law could very well be up for renewal.

Surveillance: A painful fact of modern life

As a London native, personally, I'm about as outraged by the U.S. government surveillance operations as I am walking down any street in my home country's capital — knowing full well that at any given moment, as many as a dozen cameras could be watching my every move.

For the government and president, Obama has little choice but to swallow the collective public anger and allow the intelligence community to carry on doing what it's been doing all along.

It was little surprise to learn on Wednesday that according to sister site CBS News' sources, Obama will preserve the privacy-infringing programs, reportedly also confirmed by sources in the telecoms industry notified on Tuesday.

However, the president will increase "oversight" of the intelligence community. That could entail a privacy advocate within the secret Foreign Intelligence Surveillance Court — a vastly one-sided court that hears only the case of the U.S. government in approving specific data and phone tracking on foreigners with suspected links to terrorism.

While Congress would have to approve the change, it's another so-called "reform" that will take place in secret and will never be heard in the public light. Any additional oversight from Congress would also fall on Congress' intelligence committees. And how has that previously worked out? It's left two senators, notably Senator Mark Udall (D-CO) and Senator Ron Wyden (D-OR) with direct knowledge and yet significant objections to programs such as PRISM — but unable to disclose their concerns publicly due to their classified nature.

In the meantime, there has yet to be a legal challenge in the U.K., which has been a strong supporter, advocate, and partner in the U.S.' massive global surveillance effort. Without its key ally's strategic place in the eastern Atlantic, where many of the world's Internet cables flow in and out of Britain's south-west coast, the U.S.' ability to monitor vast swathes of the global Internet would have been significantly hindered.

It takes two to tango. While the U.S. may face legal challenges and court rulings, the U.K. is still in the middle of ongoing parliamentary inquiries that may or may not lead to any eventual outcome. Unless a British court or a motion filed in parliament strikes down the U.K. government's spying efforts, Downing Street isn't required to act.

The "first rule" of surveillance fight club

The first rule of government is to protect its people, sometimes by any means necessary. Obama may have been tasked with upholding the Constitution.

But if the NSA is directly and "incidentally" collecting Americans' data, it is in spite of the Fourth Amendment, which was designed to protect citizens and residents from unreasonable searches and seizures.

That will ultimately be for the courts to battle out. With one court saying the NSA's activities are "likely" unconstitutional (which the Justice Department is appealing ), and another falling in favor of the NSA's programs, calling them "vital," it's likely not going to fall on Congress to hammer it out, but on the Supreme Court. And that's only if the nine judges on the bench decide to take on the case.

The Federal Court judge who found that the NSA's activities may have fallen foul of the constitution said there had been "little evidence" that any terror plot had been thwarted by the phone metadata program.

Yet.

Former acting CIA director Michael Morell stated in an opinion-editorial piece for the Washington Post that these programs "need to be successful only once to be invaluable." You can bet your bottom dollar that whatever these reforms may or may not be, history has taught us that surveillance only grows over time.

To put it bluntly — and even if it figuratively kills me to write it — that's all the justification the U.S. government needs to "keep calm and carry on spying", Snowden leaks notwithstanding.

Topics: Security, Government : US

About

Zack Whittaker writes for ZDNet, CNET, and CBS News. He is based in New York City.

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