Obama's Privacy Epiphany

Jacob Sullum

1/22/2014 12:01:00 AM - Jacob Sullum

Last June, after news reports revealed that the National Security Agency (NSA) was surreptitiously collecting everyone's telephone records, President Obama called this massive dragnet a "modest encroachment" that "the American people should feel comfortable about." Last Friday, he portrayed the program as a significant threat to privacy.

Which is it? Evidently the answer depends on the latest polls, which find that the American people are not as comfortable with the NSA's snooping as Obama said they should be. The president's obvious lack of conviction about the threat posed by mass surveillance makes it hard to believe he is serious about addressing it.

There was a time when Obama seemed genuinely concerned about the erosion of privacy in the name of fighting terrorism. Running for the Senate in 2004, he condemned the PATRIOT Act for "violating our fundamental notions of privacy," declaring that "we don't like federal agents poking around our libraries."

As a senator in 2005, Obama continued to criticize the PATRIOT Act and sponsored a bill aimed at raising the standard for using national security letters to obtain business records. As a candidate for the Democratic presidential nomination in 2007, he promised that in his administration there would be "no more illegal wiretapping of American citizens" and "no more national security letters to spy on citizens who are not suspected of a crime."

Last week Obama said, "I maintained a healthy skepticism toward our surveillance programs after I became president." If so, it is rather puzzling that he waited five years to implement the reforms he announced on Friday, which include new limits on searches of the phone-record database and an attempt to "establish a mechanism that preserves the capabilities we need without the government holding (these) bulk metadata."

As long as the program was secret, it seems, Obama did not recognize the privacy threat it posed. But now that it has been revealed by a leak that Obama condemns, he realizes that "without proper safeguards, this type of program could be used to yield more information about our private lives and open the door to more intrusive bulk collection programs."

In its report last December, the Review Group on Intelligence and Communications Technologies, which Obama appointed in response to the NSA controversy, noted that "the record of every telephone call an individual makes or receives over the course of several years can reveal an enormous amount about that individual's private life." Furthermore, the panel said, the same legal theory that the NSA uses to justify mass collection of phone records under Section 215 of the PATRIOT Act could be used to collect "bank records, credit card records, medical records, travel records, Internet search records, e-mail records, educational records, library records, and so on."

By his account, Obama did not understand any of this until critics started complaining about the NSA's heretofore secret database. He also was suddenly troubled by the fact that the program "has never been subject to vigorous public debate," although his administration did everything it could to prevent such a debate.

Another reason to question Obama's sincerity: He continues to exaggerate the utility of the database, arguing in his speech that it is needed to stop terrorist attacks. Yet his own privacy advisers concluded that "the information contributed to terrorist investigations by the use of section 215 telephony meta-data was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional section 215 orders" -- that is, specific orders aimed at particular targets.

Obama and his review group do agree on one important point. "Given the unique power of the state," Obama said on Friday, "it is not enough for leaders to say: trust us, we won't abuse the data we collect." The working group likewise warned that "Americans must never make the mistake of wholly 'trusting' our public officials." As long as Obama is in the White House, there is little risk of that.