Politics & National Security

40,000 Foot Reactions to President’s Review Group Report and Recommendations

By Jack Goldsmith
Friday, December 20, 2013, 10:25 AM

Pre-Snowden, the USG faced few constraints in its collection and analysis other than what the law imposed and what its large budget permitted.  Within these constraints, the USG could focus almost solely on the national security benefit side of communications surveillance, for there were few costs to it.  However, after Snowden’s revelation of the NSA’s extraordinarily broad, robust and varied methods for collection and analysis of communications information, both at home and abroad, NSA collection programs are now very costly along many dimensions, and the USG faces many tradeoffs.  Once revealed, the government must balance the security benefits of NSA activities against credible and vociferous privacy concerns at home, against diplomatic protests abroad, and against significant potential economic fallout for U.S. firms’ global business.  Relatedly, the government must credibly address the extraordinary reputational and trust damage done to the United States and the NSA, so that it can find the support, at home and abroad, to continue its core national security mission.

This is the background against which to assess the Report and Recommendations of the President’s Review Group on Intelligence and Communications Technologies – a Report completed in a short time-frame.  The Report is sprawling and in important places its recommendations are (understandably) vague or ambiguous.  I don’t agree with everything the Report recommends (Joel’s post notes some hard-to-justify proposals; I would add that most of the proposals in Part VII, along the lines of the USG’s Open Internet initiative, seem pie-in-the-sky to me, and will seem that way to the rest of the world).  And I cannot begin to understand or assess the implications of some of what it recommends (such as its recommendation that the nation’s code-breaking agency “not in any way subvert, undermine, weaken, or make vulnerable generally available commercial encryption” that could be (and often is) used by those seeking to harm the United States).  With these caveats, I find myself in wild agreement with the basic approach at the heart of the Report, which is in my view its most important contribution.

That basic approach is (1) to seek whenever possible to ensure transparency and proportionality in what NSA does, (2) to guarantee that NSA’s methods are cost-justified from the perspective of security gains and privacy intrusions and business harm, and, relatedly, (3) to ensure that the NSA (and USG) deploy the least privacy-intrusive means of collection and analysis.  Sometimes this approach yields recommendations for significant substantive reform.  More often, the proposed reforms are jurisdictional, procedural, and accountability-enhancing, and are designed to promote the legitimacy of USG collection and analysis without making radical changes in the type of intelligence analyses the USG can undertake.  If implemented, the way the USG collects and analyzes data will change, and will be subject to even more forms of review and scrutiny, and greater transparency and proportionality restraints.  But the substance of collection and analysis – including in the most controversial context, bulk meta-data collection and analysis – need not change significantly in light of these proposals.

As a result, and especially because many of the recommendations are highly caveated and couched at a high level of generality, I think the President would be wise to embrace most of them, especially most of the ones pertaining to homeland collection and analysis, and then fight for any objections at the level of detail that the Report leaves untouched or ambiguous.  The proposed reforms will have costs in terms of the speed and stealth of collection, and in terms of money and manpower spent per unit of collection and analysis, and perhaps – though this is far from clear – in terms of national security effectiveness.  These are indeed tradeoffs.  But in a post-Snowden world, the NSA and the USG must now face and bow to tradeoffs far beyond what its budgets impose.  The main goal now is to maintain maximum U.S. security while accommodating these tradeoffs.

In my view, the Report sketches out the right approach to accomplishing this goal, and many of its recommendations accommodate the tradeoffs in reality and especially in appearance while trying at the same time to meet national security imperatives.  There will of course be pushback, especially when it comes to proposed reforms of collection abroad against non-U.S. persons.  But we should be grateful to the authors (most of whom, I should disclose, I know) for explaining the essence of what is at stake in the Post-Snowden world, for sketching out an approach to managing the complex tradeoffs involved, and for many thoughtful recommendations.