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Obama's NSA reforms ignore real problem and leave foreigners unprotected

The reforms announced today, while positive in some respects, are completely inadequate to address the heart of the problem. Privacy International welcomes steps to minimise the data collected and retained on non-Americans, and the call to increase transparency around requests made to communications service providers. However, in the face of mass surveillance, unaccountable intelligence sharing, arbitrary expansions of the definition of ’national security’, and debased encryption standards, all of which fundamentally threaten the very fabric of American democratic institutions, the Obama administration has chosen to pursue reforms that serve only to tinker around the edges a grave and endemic problem. 
 
Policymakers, including President Obama, constantly harp on about the so-called balance to be struck between privacy and security. Such arguments obscure the real issues, as they begin from the utterly incorrect premise that privacy and security are mutually exclusive. This could not be further from the truth; privacy and security are not opposed, but are inherently intertwined. Software vulnerabilities and weak encryption standards not only fundamentally threaten our privacy rights but seriously undermine the essential day-to-day trust placed in modern communications. Yet intelligence agencies, chief among them the NSA, have through their own actions weakened our security and critically exposed citizens around the world to greater invasions of privacy, threats of illegal intrusion, and acts of criminality.
 
President Obama was presented with a golden opportunity, one that has not appeared in decades, to reform an out-of-control intelligence community and lay down an international line in the sand regarding respect for all citizens' very basic right to privacy. It was an opportunity to reshape and restructure an apparatus that in recent years took it upon itself to redefine what is and is not lawful and appropriate. The Presidential Commission produced well thought out and well-reasoned arguments, but their recommendations appear to have been primarily discarded by the Obama Administration, with some of the more key decisions being kicked to an increasingly divided US Congress. Moreover, President Obama gave no indication that the intelligence sharing arrangements that enable States to circumvent their domestic human rights obligations will cease, in fact suggesting expanded intelligence cooperation between the US and its allies. The secretive Five Eyes arrangement will continue to operate in the shadows as long as policymakers turn a blind eye to the fact that this alliance exists outside any sort of accountability framework.

Even if the reforms proposed by President Obama improve the accountability of America's intelligence agencies, people across the world still face the persistent threat posed by other Five Eyes States, particularly the UK, which has been shown to be operating mass surveillance programs that rival the NSA's capabilities. Given that the British government has yet to even recognize the existence of such programs, real international reform of intelligence measures will remain out of grasp for the foreseeable future.

Modern communications extend across international borders, and the right to privacy must mirror this. Real reform will come when the privacy rights of people everywhere, American and non-US citizens alike, are not only recognised but upheld according to international human rights law. Real reform will only come when we don’t have to worry that our personal data, banking details, online communications, and phone calls are being hoarded and scrutinised by an unaccountable, secret agency. Malicious practices, such as intelligence agencies stockpiling and exploiting software vulnerabilities and weakening encryption standards, are fundamental issues that need to be addressed. Real reform will come when effective and impartial oversight mechanisms are in place, to ensure that the immense power entrusted to intelligence agencies is not abused or unchecked.

What we have been waiting for is real reform that puts in place strong protections for all people, regardless of their nationality. Instead we’ve received short-sighted half-measures that do not adequately address an unpleasant reality: in the absence of strong safeguards and effective oversight, intelligence services cannot be trusted.