Confirmed: Obama’s Dragnet “Fix” Isn’t About Us

After Obama rolled out his phone dragnet fix, I noted the real reason he was doing it was not so much a concern for civil liberties, but rather a recognition that by outsourcing the data to providers, it would solve the legal-technical problems NSA had been having in two (probably related) areas: collection of cell data and operation of an alert function.

The Obama plan is an improvement over the status quo (though I do have grave concerns about its applicability in non-terrorist contexts, and my concerns about what the government does with the data of tens to hundreds of thousands of innocent Americans remain).

But don’t be fooled. Obama’s doing this as much because it’s the easiest way to solve legal and technical problems that have long existed because the government chose to apply a law that was entirely inapt to the function they wanted to use it for.

Shockers! A more privacy protective solution also happens to provide the best technical and legal solution to the problem at hand.

Yesterday, David Sanger confirmed that was the case, at least for the cell data problem.

At the N.S.A., there is grumbling about the continuing disclosures of material stolen by Mr. Snowden, but comparatively little complaint on the new limits Mr. Obama has proposed. In some cases, the N.S.A. gained some access to data even as it lost some autonomy. For example, its program to collect metadata missed a large percentage of cellphone calls. Under Mr. Obama’s plan, if it becomes law, the N.S.A. would have to leave that data in private hands, but when the N.S.A. does get it, under court order, the agency should have access to a lot more than it does today.

“It’s a pretty good trade,” said one senior intelligence official who has been working on the issue. “All told, if you are an N.S.A. analyst, you will probably get more of what you wanted to see, even it’s more cumbersome.”

And given Spencer Ackerman’s report that the White House wants to give the telecoms immunity under this new “fix,” the issue may well go beyond the cell data, though cell data has its own legal risks.

In a statement of principles privately delivered to lawmakers some weeks ago to guide surveillance reforms, the White House said it wanted legislation protecting “any person who complies in good faith with an order to produce records” from legal liability for complying with court orders for phone records to the government once the NSA no longer collects the data in bulk.


A congressional aide said the telecommunications companies were expected to “fight hard” for the provision to survive in any surveillance bill. Those firms, including Verizon and AT&T, have typically kept far more silent in public about NSA surveillance and their role in it than internet giants, like Yahoo and Google, which have pushed for reforms.

Ackerman’s wrong about Verizon’s silence — not only has it already issued a somewhat critical statement on proposed reforms, it also made a flaccid challenge to a recent order. But its stated concerns refusing to create new records is probably related to the real legal concerns underlying demands for immunity. To get cell records without location information (the latter of which would probably violate US v. Jones), Verizon apparently would and will need to make new records not otherwise required for its business purposes (which, again, may be the source of the cell data problem).  That’s a very different legal role than simply as a communications provider, one it apparently is not thrilled about playing.

And all that’s before you consider the possibility, under the House Intelligence RuppRoge “reform,” that these “reforms” would also get Internet content-as-metadata again.

The fact is the government can’t legally do what it wants to do. They’re trying a new plan, by outsourcing to the providers. But it’s not clear that’s legal either.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

5 replies
  1. JohnT says:

    Sorry about being off topic

    But I thought someone here would enjoy this gif I just ran across. It’s weird, and probably nsfw once you figure out what that thing is, but it’s funny, and a visual metaphor for what we’ve said or thought several times

  2. Phil (Bustednuckles) says:

    So if collecting some of this info is not part of a business plan then that shoots a hole in the governments reasoning that they can have access to it.

    That is what they based their legal ability on going clear back to the old phone records,
    that they were business records.

  3. TomVet says:

    This is also a huge bait and switch to cover their various parallel construction schemes. They already have all the equipment installed on the cables and switches of the providers and are not going to stop using them just because they are told they should. But now, when they see something they can use in a prosecution or other purpose they can get a FISA court order for the info. Then with a wave of the old wand and a mighty “Abracadabra” (not the troll) that data becomes “legally obtained” in the regular court’s eyes.

  4. john francis lee says:

    German government thwarts investigation of NSA scandal

    On the day of Chancellor Angela Merkel’s trip to the US, the German government made clear that it would thwart any further investigation into the spying activities of America’s National Security Agency (NSA).
    While Merkel was being welcomed at the White House Friday by President Barack Obama, the Bundestag (parliamentary) Committee of Inquiry into the NSA received a government file on the questioning of whistle-blower Edward Snowden. Over 27 pages, the government made unmistakably clear that under no circumstances would it permit the questioning of Snowden on German soil, claiming it would endanger the “welfare of the state.”
    The Süddeutsche Zeitung cited the last draft of the document as saying that inviting the former NSA contractor would be inconsistent with “important political interests of the Federal Republic of Germany” and would permanently threaten its relationship with the United States. Cooperation between the German secret services and their US counterparts could be limited, “at least temporarily,” as a result of Snowden appearing in Germany. On these grounds, the government brief concluded that “the interests of seeking clarity must yield to the welfare of the state.”
    This position is remarkable. It openly subordinates the interests of the people, whose personal lives are being spied on, to the interests of the state. The legal duty of the federal prosecutor to investigate the accusation of mass spying is simply brushed aside. As in a despotic regime, the criterion of “what is good for the state” is being elevated above the law and the Constitution.

    It is good for the state to obtain more lebensraum in the East.
    The New Axis is the old Axis … with our USA filling in for Italy.
    I know it’s a good thing you’re doing, documenting it all.
    Stopping it would be better though.

Comments are closed.