Obama Reins In the NSA -- Maybe

With typical eloquence, President Barack Obama laid out his vision today for reforming the National Security Agency. He placed the controversy over the agency’s expansive post-Sept. 11 powers in a historical context stretching back to the Sons of Liberty and Union reconnaissance in the Civil War.

What his history lesson missed, however, is that in the perpetual ebb and flow of the intelligence community’s power, outrage alone has never been enough to restrain its influence -- that requires aggressive self-criticism by the government.

Obama took some today toward such self-restraint, such as granting more privacy protections to non-Americans and proposing that civil-liberties advocates have a greater role before the secret courts that grant surveillance requests.

He also took one bigger step. The current program of collecting Americans’ bulk phone records will be replaced with ... something else. The details are a little hazy -- the attorney general and the intelligence community will have the job of creating a better system -- but whatever they come up with will rightly be subject to congressional authorization and should get more vigorous oversight. In the meantime, a judicial finding will be required if the NSA wants access to the data. This is progress: The phone data program was of dubious legality and questionable value, and requiring a judge’s approval to access the data will provide an additional firewall.

Yet even this advancement misses the point. What the former intelligence contractor Edward Snowden revealed, in illegal leaks beginning in June, was something more than run-of-the-mill government snooping. It was a breathtaking global surveillance operation run by an agency that has grown immensely powerful -- and far too sophisticated for the antiquated laws meant to govern its activities.

The NSA is capable of monitoring almost every form of communication on Earth. It has tapped into fiber-optic cables, mobile phone networks, e-mail systems and encrypted fax machines. It collects 200 million text messages, 5 billion phone-location records and hundreds of thousands of e-mail address books each day. It has amassed trillions of American call records. It has leaned on at least nine U.S. technology companies to divulge data on their users, paid telecommunications companies hundreds of millions of dollars a year for their cooperation, and eavesdropped on online chats, browsing histories and even Internet computer games.

The NSA is working on a quantum computer that could undermine the global system of data encryption, and has developed a way to hack into computers that aren’t connected to the Internet. Its menagerie of exotically named capabilities -- Deitybounce, Surlyspawn, the Turbopanda Insertion Tool -- hints at far broader aptitudes. And the agency is only one part of a larger global surveillance network comprising intelligence agencies from five countries. Their combined power almost defies belief.

The potential benefits of such a powerful agency are obvious, as is the presidential temptation to abuse it. So Obama, unlike some of his predecessors, should be commended for ceding some control over the NSA’s activities.

But in the past -- and this is what the president’s history didn’t fully acknowledge -- when U.S. intelligence agencies have exceeded what the public considered reasonable limits on their power, the government has stepped back and reassessed its priorities.

In 1975, public outrage over intelligences abuses -- including the NSA’s snooping on American anti-war activists -- culminated in a far-ranging Senate investigation. “The technological capacity that the intelligence community has given the government could enable it to impose total tyranny,” said the man who led it, Senator Frank Church, in 1975, “and there would be no way to fight back.”

One result of the investigation was the enactment, in 1978, of the Foreign Intelligence Surveillance Act, the law that now governs the NSA’s activities. It was a bold change, bringing about a fundamental reassessment of how intelligence collection should fit within a democratic government.

The argument is not that government surveillance is unnecessary; in many ways, it more crucial than ever. Yet Church could have scarcely imagined what the NSA is now capable of, and the law simply hasn’t kept up with the relentless advance of technology. The legal framework requires a far deeper reassessment. And the NSA should be subject to a far more intensive and transparent investigation than what the president -- or Congress -- has so far been willing to consider.

Because while the benefits of its activity seem awfully elusive to the average American, the costs -- in liberty (for U.S. citizens), credibility (for the U.S. government) and sheer dollars (to the U.S. economy) -- keep growing.

The country’s desire for both liberty and security will always be in tension. No president will ever resolve it perfectly. What’s crucial is to recognize the times when that delicate balance has come undone, and to make a correction. Now is one of those times.

To contact the senior editor responsible for Bloomberg View’s editorials: David Shipley at davidshipley@bloomberg.net.