A Minute With...

Stephen Rushin, expert in criminal law and information privacy

1/28/2014  8:00 am

In an interview with News Bureau business and law editor Phil Ciciora, law professor Stephen Rushin, an expert in criminal law and information privacy, discusses the Obama administration’s recently announced plans to overhaul the National Security Agency’s controversial phone data collection program.

Should President Obama’s proposed reforms put the average person’s fears to rest about government spying? Or, as some critics suggest, are the changes merely cosmetic?

Let me start by saying that these are important and necessary reforms. With that said, I think you could fairly describe these proposed changes as more cosmetic than sweeping. The changes are, more or less, aimed at reforming the internal access to data rather than the collection of data.

So these reforms don’t change the fact that the government is still accumulating enormous amounts of metadata on phone calls under Section 215 of the Patriot Act. Even though these proposed policies would apply more stringent access restrictions on data access, there is still a risk that some individuals may not follow these new internal policies. Anytime you accumulate mass amounts of data in a dragnet fashion, you run the risk that someone may use the data later on for an unintended and dangerous secondary purpose. These reforms may reduce the likelihood of such misuse. But the only way to eliminate this potential threat is to place strict limits on data retention, as opposed to data access.

What is your take on the adversarial elements that President Obama has proposed for reforming the Foreign Intelligence Surveillance Court?

This is a critically important reform – perhaps the most important reform that the president recommended. Right now, our current system allows for the government to get approval for invasive surveillance by filing a request with a FISA court. And under the current system, there is no advocate arguing on the side of protecting the privacy of the targeted person. The court only hears one side – that of the government. Using this non-adversarial model, FISA courts have historically approved about 99 percent of all government requests.

So we’re really at the start of the process rather than the end, because intelligence agencies and Congress both have to transmute the principles that the president outlined in his speech into concrete policy, correct?

Correct. President Obama will be relying on Congress to articulate some specifics. For example, take the president’s recommendation that the FISA court have an advocate designated to increase the adversarial nature of the proceeding. The president called on Congress to establish a panel of qualified advocates to fill this role. Similarly, the president has called on the Justice Department and the intelligence community to produce a more detailed plan to begin many of the proposed reforms. The president cannot reform the government surveillance program by himself. It must be a joint effort involving many different governmental bodies.

Can this about-face by the Obama administration be seen as anything but a victory for Edward Snowden and NSA reform advocates?

Without a doubt, this is a victory for NSA reform advocates. But for those in favor of reform, the war is not over. These proposed changes do not address one of the core issues troubling privacy advocates – the actual collection and retention of data. I think many privacy advocates also are weary of the administration’s suggestion that metadata does not reveal a significant amount of private information about an individual.

Should Snowden be granted clemency?

I’m hesitant to go there. I think that these steps taken by the Obama administration are an acknowledgment that there was something wrong with the government’s surveillance and data access policies. But one point that the president emphasized at the news conference was that, even if Edward Snowden felt that the government surveillance program was wrong, that did not give him the authority to reveal large amounts of classified information. Similarly, the president expressed concern about the scope of the information released by Snowden. The administration is also likely concerned about the precedent that would be established by granting Snowden clemency. While I am sympathetic to the concerns Snowden’s leaks have raised, I am also hesitant to give him full clemency for revealing so much classified information, including information that goes beyond the scope of domestic surveillance.

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