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Analysis

To Obama, NSA’s not spying until it reads data

President Barack Obama said Friday, in his first major speech on electronic surveillance, that “the United States is not spying on ordinary people who don’t threaten our national security.”

Obama placed restrictions on access to domestic phone records collected by the National Security Agency, but the changes he announced will allow it to continue – or expand – the collection of personal data from billions of people around the world, Americans and foreign citizens alike.

Obama squares that circle with an unusually narrow definition of “spying.” It does not include the ingestion of tens of trillions of records about the telephone calls, emails, locations and relationships of people for whom there is no suspicion of relevance to any threat.

In his speech, and an accompanying policy directive, Obama described principles for “restricting the use of this information” – but not for gathering less of it.

Alongside the invocation of privacy and restraint, Obama gave his plainest endorsement yet of “bulk collection,” a term he used more than once and authorized explicitly in a presidential directive “without the use of discriminants.”

That is perhaps the central feature of “the golden age of signals intelligence,” which the NSA celebrates in top-secret documents leaked by former contractor Edward Snowden.

Obama for the first time put his own imprimatur on a collection philosophy that one of those documents summarized this way: “Order one of everything from the menu.”

As digital communications have multiplied, and NSA capabilities with them, the agency has shifted resources from surveillance of individual targets to the acquisition of communications on a planetary scale.

That shift has fed the appetite of tools designed to find unseen patterns and make connections that NSA analysts don’t know to look for.

“It’s noteworthy that the president addressed only the bulk collection of call records, but not any of the other bulk collection programs revealed by the media,” said Alexander Abdo, an attorney with the ACLU’s national security project.

“That is a glaring omission. The president needs to embrace structural reforms that will protect us from all forms of bulk collection and that will make future overreach less likely.”

In principle, these tools have the potential to reveal unknown associates of known foreign targets, although the intelligence community has struggled to offer examples.

But they rely, by definition and intent, on the construction of vast databases filled almost entirely with innocent communications.

Obama’s view, like the NSA’s, is that there is no intrusion on privacy until someone calls up the files and reads them.

Obama’s approach is to “take … privacy concerns into account” after the collection takes place.

In his directive, he defined a set of broad principles for use of the data, without specifying implementing details.

In his speech, the president said the NSA is already following those principles.

“The United States does not collect intelligence to suppress criticism or dissent, nor do we collect intelligence to disadvantage people on the basis of their ethnicity, race, gender, sexual orientation or religious beliefs,” he said. “And we do not collect intelligence to provide a competitive advantage to U.S. companies or U.S. commercial sectors.”

In a significant footnote to his directive, Obama said the limits he ordered “shall not apply to signals intelligence activities undertaken to test or develop signals intelligence capabilities.”

Signals intelligence development, or “sigdev” in NSA parlance, is the discovery of untapped communication flows and the invention of new surveillance methods to exploit them.

For example, NSA Director Keith Alexander revealed last summer that his agency had collected location data from mobile phones in the United States.

At least for now, while Congress debates its next steps, Obama said he will require that the NSA obtain court approval to search the trillions of domestic call records collected in secret since 2006.

He suggested no such limit on a far more intrusive form of domestic surveillance: the NSA’s authority to search for and make use of the content of U.S. communications that are “incidentally” collected in surveillance that is targeted on foreign nationals and stored in the agency’s databases.

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