The Utah Data Cente, one of the NSA's data gathering facilities, in a 2014 photo released on July 9, 2014. (Electronic Frontier Foundation)
President Barack Obama’s speech on Friday about overhauling how America spies on itself and the world grabbed headlines — but it mostly served to feed, not resolve, big debates largely forced on him by Edward Snowden’s leaks.
Here are eight questions about what happens next in the ongoing “Yes we can! But should we?” argument about the National Security Agency’s role in surveillance and overall intelligence-gathering.
1) How will the Supreme Court react?
Lots of reporting about the future of American surveillance seem to forget about the nine justices, who aren’t going to “react” to Obama's speech, of course, but might yet play the most influential role in setting rules of the road.
Two federal judges have recently broken on whether the government’s storage of Americans’ telephone metadata — everything except the content of communications — is constitutional. That means the Supreme Court might weigh in on whether that program is constitutional.
Congress and the administration’s lawyers will take their cues from that ruling, no matter which way it goes.
2) How will Congress react?
Congress, bitterly divided on this issue, has three big roles to play going forward.
First, Obama has tasked lawmakers with making changes to some high-profile surveillance mechanisms. It’ll be up to Congress, for example, to establish a “panel of advocates” that might be called to weigh in on big cases and "novel" legal issues before the Foreign Intelligence Surveillance Court, which issues what amount to search warrants. It could also amplify — or restrict — proposals he made.
Second, lawmakers will continue to play their constitutional oversight role — calling key officials to testify in public and private hearings, receiving briefings on key counterterrorism actions.
Third, they will have to choose whether and how to tinker with existing programs. Lawmakers are divided on the next steps, with the most obvious battle being between passionate defenders of the intelligence community and its no-less-passionate critics, all as 2014 elections loom.
3) How will the public react?
The public is deeply split on these issues, according to recent polls. A solid majority considers Snowden more whistle-blower than traitor, but the gap narrows considerably when questions focus on individual programs.
We won’t know for a while how and where Obama’s speech might quiet concerns.
4) How will allies react?
Cautiously, as they should.
Before Obama spoke, senior administration officials told reporters U.S. spy agencies had stopped targeting the communications of “dozens” of leaders deemed “friends and allies.”
“If I want to learn what they think about an issue, I will pick up the phone and call them, rather than turning to surveillance,” Obama added in his speech.
Well, not “unless there is a compelling national security purpose,” he said.
The White House did not flesh out that standard or who would make that determination. But the notion that Obama would completely halt spying on leaders of “allies” is curious, given that the list of nations officially labeled “allies” includes countries such as Pakistan.
A lot of harrumphing from overseas about American spying has been for show: Few leaders were truly surprised by the NSA’s reach. But one topic provoking foreign officials to privately express alarm is whether Washington uses its massive surveillance apparatus to help U.S. corporations.
“We do not collect intelligence to provide a competitive advantage to U.S. companies or U.S. commercial sectors,” Obama promised in his speech.
But a footnote to a White House directive, issued to flesh out his remarks, reads: “Certain economic purposes, such as identifying trade or sanctions violations or government influence or direction, shall not constitute competitive advantage.”
“Government influence or direction”? Like, say, in trade negotiations? You could fly a Boeing Dreamliner through that loophole.
5) How will civil liberties groups and their allies in Congress react?
They’re not likely to stay quiet. While some of Obama’s proposals are notable, and others might give rise to more sweeping reform, he’s unlikely to placate them.
“The president’s speech outlined several developments which we welcome,” said American Civil Liberties Union executive director Anthony Romero. “But the president should end – not mend – the government’s collection and retention of all law-abiding Americans’ data.”
What will ultimately happen to the program that collects and searches telephone records? Will the government succeed in handing off the job of storing that data? When the president says the government in the future will be able to search those records only with a court order or “in a true emergency,” will authorities reflexively argue the latter to avoid the former? Will Congress agree to create the advisory panel for the Foreign Intelligence Surveillance Court? Will that panel actually be called into action?
"The president took several steps toward reforming NSA surveillance, but there's still a long way to go," according to Electronic Frontier Foundation Legal Director Cindy Cohn. "Now it's up to the courts, Congress and the public to ensure that real reform happens."
6) How will high-tech companies react?
The business of America is business, and public anger about the government getting access to emails and other online data is bad for Silicon Valley. High-tech CEOs worry the perception that their companies turn over private information to the government will drive consumers to foreign competitors.
It’s not clear how American IT companies will view Obama’s pronouncements, but they’ll probably take their cues from public reaction.
That said, telecommunications providers have already rejected the suggestion that they could hold on to Americans' telephone data on the government's behalf and then let the NSA search through it. One administration official suggested a possible way to turn that around might be congressional action to defray some of their costs and perhaps grant them immunity from lawsuits.
7) How will the intelligence community react?
It got much of what it wanted. Obama brushed aside suggestions of adding a defense attorney-like figure to Foreign Intelligence Surveillance Court proceedings. He did not announce major restrictions on “National Security Letters” the FBI uses like subpoenas for private records. He modified, but did not end, the bulk collection of phone records. He built in loopholes to most of his big proposals.
And as much of the battle shifts to Congress, the committees of jurisdiction are led by lawmakers who have generally had the intelligence community’s interests at heart.
8) How will Snowden react?
There was an interesting moment last week in the Oval Office when Spanish Prime Minister Mariano Rajoy said that American explanations for overseas spying had been “satisfactory” and that he would keep quiet “unless there are new disclosures.”
American officials say they aren’t sure what else the former NSA contractor could reveal in the coming months.
Snowden forced this debate on the most powerful man in the world. He could still shape it.