Will Silicon Valley Get Off As Easy As NSA As White House Seeks to Shift Surveillance Debate Away From the Spies

May 3, 2014

In Surveillance Debate, White House Turns Its Focus to Silicon Valley

David E. Sanger

New York Times

Adm. Michael Rogers, tapped by President Obama to head the National Security Agency, which could gain access to more data. Credit Jim Lo Scalzo/European Pressphoto Agency WASHINGTON — Nearly a year after the first disclosures about the National Security Agency’s surveillance practices at home and abroad, the agency is emerging with mandates to make only modest changes: some new limits on what kind of data about Americans it can hold, and White House oversight of which foreign leaders’ cellphones it can tap and when it can conduct cyberoperations against adversaries.

The big question now is whether Silicon Valley will get off as easily. It was the subject of a new White House report about how technology and the crunching of big data about the lives of Americans — from which websites they visit to where they drive their newly networked cars — are enlarging the problem.

At their core, the questions about the N.S.A. are strikingly similar to those about how Google, Yahoo, Facebook and thousands of application makers crunch their numbers. The difference is over the question of how far the government will go to restrain the growth of its own post-Sept. 11 abilities, and whether it will decide the time has come to intrude on what private industry collects, in the name of protecting privacy or preventing new forms of discrimination.

President Obama alluded to that at the White House on Friday, when he was forced to take up the issue at a news conference with one of the N.S.A.’s most prominent targets: Chancellor Angela Merkel of Germany, who said she was still not satisfied with America’s responses to the revelations that her phone — and her country — were under blanket surveillance for a dozen years.

“The United States historically has been concerned about privacy,” Mr. Obama said, trying to seize some high ground in the debate. His string of assurances along that line rang a bit hollow last year, as the administration reacted to each disclosure by Edward J. Snowden, the former N.S.A. contractor, with assurances that the programs were among the most closely monitored in the intelligence world, and that they were necessary to protect the country.

But by January, Mr. Obama had arrived in a different place. After approving, for five years, a government program to collect telephone metadata — the information about telephone numbers dialed and the duration of calls — he acceded to recommendations to leave that information in the hands of telecommunications companies. Quietly, the White House ended the wiretapping of dozens of foreign leaders.

Now, by expanding the debate to what America’s digital titans collect, Mr. Obama gains a few political advantages. He is hoping to reinvigorate legislative proposals that went nowhere in his first term. And now that the revelations about the N.S.A. have tapered off, at least for a while, his aides seem to sense that Americans are at least as concerned about the information they entrust to Google and Yahoo.

In Silicon Valley, there is a suspicion that the report issued on Thursday by John D. Podesta, a presidential adviser, is an effort to change the subject from government surveillance. Mr. Podesta insists it is about expanding the discussion about how information is used.

“It’s a good time to revisit both public and private data collection and handling,” said Jonathan Zittrain, a founder of the Berkman Center for Internet and Societyat Harvard. He noted that the last time the government looked at how private companies collected data online, “it regulated lightly,” asking companies to disclose their privacy policies and little else. Since then, he noted, “the scope of what both private companies and public authorities can collect from us has increased enormously.”

The question is whether restrictions placed on the N.S.A. — and public resistance — will spill over to regulation of the private sector, and conversely whether new norms of what companies can collect will begin to affect the intelligence world.

At the N.S.A., there is grumbling about the continuing disclosures of material stolen by Mr. Snowden, but comparatively little complaint on the new limits Mr. Obama has proposed. In some cases, the N.S.A. gained some access to data even as it lost some autonomy. For example, its program to collect metadata missed a large percentage of cellphone calls. Under Mr. Obama’s plan, if it becomes law, the N.S.A. would have to leave that data in private hands, but when the N.S.A. does get it, under court order, the agency should have access to a lot more than it does today.

“It’s a pretty good trade,” said one senior intelligence official who has been working on the issue. “All told, if you are an N.S.A. analyst, you will probably get more of what you wanted to see, even it’s more cumbersome.”

In other cases, the N.S.A. is clearly giving up authority. Decisions about whether to exploit flaws in software to allow for surveillance or cyberattacks will be made at the National Security Council, not at the agency’s headquarters in Fort Meade, Md. That list of leaders being wiretapped now gets high-level scrutiny. But more oversight does not necessarily mean operations will end.

While Mr. Obama has a lot of latitude in intelligence collection, the area pushed in the Podesta report will run headlong into considerable resistance in the country’s most innovative companies. Most turned out statements on Thursday embracing the idea of enhancing individual privacy; Microsoft said that it supported the effort and “will keep working with lawmakers to make these tougher privacy protections a reality.”

The argument will be over what constitutes “effective use.” The report discussed a range of potential abuses: algorithms so effective that they could be used to create subtle, hard-to-detect biases in decisions about who can get a loan or whom to hire for a job. It even took a shot at metadata, the N.S.A.’s favorite tool, noting that it can reveal a lot about personal habits.

That is information that most Americans say they do not want intelligence agencies to have. But whether they are willing, as the price for joining an interconnected world, to put it in the hands of private firms, and whether the government should intervene to set the rules is not clear.