The Snowden leaks and the ensuing critical spotlight shone on the National Security Agency’s surveillance programs have nudged many technologists, privacy hounds and politicians away from their desks and onto the front lines calling for reforms.
Two nights ago, the New York Times reported that President Obama responded to those calls and would soon reveal a new legislative proposal that would end the agency’s bulk collection of phone call records. While shy on many important details, the move demonstrates that public debate still holds some sway with policy makers.
“The only [turning point] was disclosure of the program,” said Brett Max Kaufman, National Security Fellow and attorney with the American Civil Liberties Union. “Since that day, this has almost been inevitable because the claims the government made in secret to FISC [Foreign Intelligence Surveillance Court] and to Congress were never given a fair hearing from the other side. Once these programs became public and the government had to defend them in a court of law and in the court of public opinion, it was clear that these claims made in secret could not withstand arguments from civil libertarians and the public at large.”
While the president’s proposal carries the weight of the White House, it addresses only the NSA’s collection of phone metadata, and none of the other alleged surveillance activities made public by the Snowden documents. Other bills, such as the USA FREEDOM Act, extend beyond phone records to digital information collected through what’s known as the PRISM program under section 702 of the Foreign Intelligence Surveillance Act (FISA) and provide for enhanced oversight over intelligence gathering.
The Electronic Frontier Foundation, one of the most vocal advocacy groups opposing government surveillance of Americans, applauded the White House proposal yesterday, but endorsed the FREEDOM Act. The EFF called it “a giant step forward” and said it was a more favorable proposal than the president’s or another introduced by the House Intelligence Committee yesterday.
“Or better still, we urge the Administration to simply decide that it will stop misusing section 215 of the Patriot Act and section 702 of the FISA Amendments Act and Executive Order 12333 and whatever else it is secretly relying on to stop mass spying,” said EFF legal director Cindy Cohn and EFF legislative analyst Mark M. Jaycox. “The executive branch does not need congressional approval to stop the spying; nothing Congress has done compels it to engage in bulk collection. It could simply issue a new Executive Order requiring the NSA to stop.”
The president’s proposal would end the NSA’s collection and storage of phone data; those records would remain with the providers and the NSA would require judicial permission under a new court order to access those records. The House bill, however, requires no prior judicial approval; a judge would rule on the request after the FBI submits it to the telecommunications company.
“It’s absolutely crucial to understand the details of how these things will work,” the ACLU’s Kaufman said in reference to the “new court order” mentioned in the New York Times report. “There is no substitute for robust Democratic debate in the court of public opinion and in the courts. The system of oversight is broke and issues like these need to be debated in public.”
Phone metadata and dragnet collection of digital data from Internet providers and other technology companies is supposed to be used to map connections between foreigners suspected of terrorism and threatening the national security of the U.S. The NSA’s dragnet, however, also swept up communication involving Americans that is supposed to be collected and accessed only with a court order. The NSA stood by claims that the program was effective in stopping hundreds of terror plots against U.S. interests domestic and foreign. Those numbers, however, quickly were lowered as they were challenged by Congressional committees and public scrutiny.
“The president said the effectiveness of this program was one of the reasons it was in place,” Kaufman said. “But as soon as these claims were made public, journalists, advocates and the courts pushed back and it could not withstand the scrutiny. It’s remarkable how quickly [the number of] plots turned into small numbers. The NSA was telling FISC the program was absolutely necessary to national security, but the government would not go nearly that far in defending the program. That shows the value of public debate and an adversarial process in courts.”