Obama's Plan to Privatize Phone Surveillance Could Hit Silicon Valley, Too

In President Obama's end of 2013 press conference, he said of NSA surveillance practices, "We need this intelligence. We can't unilaterally disarm." Obama then floated a data retention mandate that would be placed on telephone companies, a plan that could have much wider implications for electronic surveillance both domestically and globally. If a law could be written to force data storage on telephone companies, could it not be expanded to demand the same of Silicon Valley corporations?

While Obama didn't address internet data mining in this context in December, he was emphatic about creating a "mechanism" to privatize surveillance:

It is possible, for example, that some of the same information that the intelligence community feels is required to keep people safe can be obtained by having the private phone companies keep these records longer and to create some mechanism where they can be accessed in an effective fashion.

With that, the public knew where Obama sat on NSA reform. Mass telephone data mining would continue, pushed sideways into the private sector; which, of course, does a lot of the NSA's legwork anyway.

This Friday, Obama is set to publicly unveil his NSA reform plans, which will be selected from a 300-page document, authored by a five-person surveillance reform panel. The group recommended that phone companies store call records instead of the NSA, which has been warehousing them for five years. This means that mobile providers like Verizon, T-Mobile, and AT&T would behave essentially like private intelligence firms.

If this move is good for call data, then why not other data such as texts, geo-tagged photos, and app communications (Snapchat, Instagram)? Because, let's face it, people aren't making many calls from landlines these days. We use smartphones for almost all communications, many of which aren't phone calls. Androids, iPhones, and other mobile devices are the golden geese of electronic surveillance. Are we to believe that a bill forcing mobile service providers to store data would limit that corporate responsibility to just phone calls?

Beyond that, how can Obama seriously parrot such a recommendation when the private sector—Google, Facebook, and Microsoft, among others—data mines nearly everything for profit, making what the NSA does possible? Without these companies, the NSA has nothing or at least very little. Obama's move is a noxious fig leaf, and exceptionally daring in its assumption of national and international ignorance about who is doing most of the data mining.

Co-founder of the Wickr app, Nico Sell, says that surveillance has already been privatized. "[This] may stop the NSA, but not the PLA [China]," said Sell, who calls technology companies masters of surveillance. "Metadata is a hazardous waste. We need new systems that do not collect metadata, and this is possible." Sell recommends "zero-knowledge systems" as the real and only solution to combatting surveillance.

Of course, Obama is handcuffed on NSA reform. The president can formulate a plan, but Congress has to debate and pass the measures. As we saw with Rep. Justin Amash's bill to defund the NSA, the house is divided. Many representatives would find Obama's plan not substantive enough, while others would consider it a threat to national security. So, it could potentially go nowhere.

Another consideration is the willingness of telephone companies to collaborate with the government. These days, it's bad business to be seen doing the NSA's outsourced data mining chores. We could see a lot of industry lobbying to counteract this type of arrangement. But, according to the Associated Press, "the cellular industry told the government that it prefers the NSA keep control over the surveillance program and would only accept changes if they were legally required." In other words, they will do the government's bidding if a law were on the books that dictated it. Let's assume that telephone companies cooperate: would Google, Facebook, and other big Silicon Valley players eventually be forced to follow suit by storing user data for the government? Recently, these tech giants very publicly called on Obama to reform surveillance. In the interest of user retention, they're not likely to so easily cooperate with the government. As with the telephone company stance, though, a new law could force their hands.

Come Friday, we'll have more details on the President's NSA reform effort. If there is a positive response to Obama's recommendation to shift call data warehousing to telephone companies, then things could get really interesting.