New rules for spooks

Barack Obama’s plan for restraining his spies is balanced but vague

BEFORE committing mass murder, one of the 9/11 hijackers made a call from San Diego to an al-Qaeda safe house in Yemen. At the time, the National Security Agency (NSA) had no way to tell that the call had come from America. Haunted by such lapses, successive governments have doubled the budget for intelligence in real terms since 2001, to $75 billion in 2012. At its peak, around three years ago, America was spending nearly twice as much on intelligence as it had during the cold war. Rather than write new laws to govern the use of this bounty, Congress relied largely on old ones, drawn up when the internet was an obscure government project.

In a long, professorial and rather good speech on January 17th, Barack Obama surveyed the past 250 years of spying, paused to praise the employees of the NSA, who must be fed up with being compared to the Stasi, and then suggested what new rules ought to look like. As yet the proposals are a bit vague and some will be hard to implement, but the speech was an unusually open primer on how America should spy.

The last time revelations in the press prompted a public debate about spying, it followed disclosures that the CIA had tried to assassinate political leaders in Africa and Latin America and that the FBI had snooped on Martin Luther King. Edward Snowden, the security-contractor-turned-leaker who fled from Hawaii with a huge stash of secret data in May 2013, has not revealed anything so shocking. Still, it makes sense for Congress to update constraints placed on intelligence-gathering that were drawn up in the disco era.

  The argument over spying on Americans at home has revolved around the exposure of a programme to collect telephone metadata (the records of who called whom and when, though not what they said). Though the bulk collection of metadata was authorised under the Foreign Intelligence Surveillance Act of 1978 and then bolstered by the Patriot Act of 2001, judges differ as to whether the programme is constitutional. Mr Obama claimed that a public discussion about domestic spying would have taken place without Mr Snowden’s intervention. That is doubtful: without the leaks there would have been nothing much for the public to discuss. This is Mr Snowden’s strongest claim to be treated as a whistleblower.

The president vowed to end “the programme as it currently exists”, which means he would keep it in a modified form. At the moment the NSA sucks up the data and stores them in facilities like the one it has just built in Utah for around $1.5 billion. The most likely reform is for the government to pay private firms to store the data, just as it already pays some phone companies to turn on wiretaps.

His second proposal on domestic surveillance is to change the way National Security Letters operate. This legal instrument, which also dates from the late 1970s, allows domestic spooks to extract information about an individual from a company and prevents the company from disclosing the order to the target. At the moment such orders are kept secret indefinitely. The president proposes to end that.

When spying on people outside America, the president announced that the intelligence services will listen to the phones of friends and allies only when there is a compelling national-security reason for doing so, rather than just because they can. America is not explicit about who its friends and allies are, so this pledge may lead to “some nervous glances around the table at the next NATO summit”, says one diplomat. But it has been welcomed by European allies, some of whom privately admit that there is a good deal of hypocrisy in the criticism of America’s spooks by allies, since their own spies do similar things, and even a smattering of jealousy, as America’s are better at it.

Mr Obama stressed that America does not spy for commercial reasons. He said that the leaks have revealed “methods to our adversaries that could impact our operations in ways that we may not fully understand for years to come.” If so, that strengthens the argument that Mr Snowden should be treated as a traitor.

Americans do not mind if their government spies on foreigners, polls suggest. Many don’t mind if it collects data on Americans either. Research by the Pew Centre shows support for the NSA’s surveillance has dipped to its lowest level since the question was first asked: 53% disapprove; 40% approve. When there is a Democrat in the White House, Democrats are much keener to support what America’s spies are doing, while Republicans become more suspicious; and vice versa. With public trust is so fickle, the intelligence services require an updated set of rules. Alas, a Congress facing mid-term elections this year may not be able to agree on what those rules should say. The Economist