Fair Questions: Is the NSA going to be reformed?

Some time ago, I was writing about potential reforms of the NSA floated by the Obama administration.   In particular, I stumbled across this article in which the author takes the reader through an overview of some of the highlights of the letter from Judge John D. Bates regarding potential reforms to the FISA (Foreign Intelligence Surveillance Act) courts. In the letter, Judge Bates has expressed several concerns about proposed process changes being considered by the Obama administration and the legislature. The article mentions several of his points, including those relating to the creation of a public advocate role to intervene in the FISC (Foreign Intelligence Surveillance Courts), changing the appointment process for FISC judges, publishing redacted materials from FISC decisions, and adding significantly to the caseload of the courts.

The author quotes Judge Bates regarding the portions of the letter which call lawmakers to pay careful attention to detail when making the changes, to keep in mind that expanding the FISC’s duties will mean expanding the resources allocated to it, and that there are serious risks in publicizing the court’s decisions without publicizing the relevant classified facts. The author also notes at the end of the article that the Obama administration has created a Presidential review group comprised of many people with relevant expertise to discuss possible reforms to the surveillance programs conducted by the NSA. The results of the review are to be announced Friday, January 17th at the Justice Department.

The consideration of changing the processes of any organization presents challenges, but this is especially true of organizations whose job is to navigate a complex body of federal law applied to circumstances which are classified and require discretion above and beyond even normal judicial discretion. Fortunately, Judge Bates clearly communicated some of the key issues which often plague organizational shifts. First, he states quite definitely that, “It is imperative that any significant increase in workload for the Courts be accompanied by a commensurate increase in resources.” Many organizations fail to reallocate resources appropriately when shifting workloads, and Judge Bates seems to be very cognizant of this possibility. And well he should be, given the tendency of lawmakers to defund programs rather than going to the trouble of repealing the legislation which created or changed them. One of the last points is with regard to the public release of court documents. Such documents would have to be redacted of classified material, and because the classified material is what the courts are using to make the decision, how exactly is anyone not privy to that material supposed to understand the decisions of the FISC? I definitely agree with Judge Bates that this would be likely to cause “confusion and misunderstanding.” The final point made by Judge Bates is that, “Care should be taken not to place the Courts in an ‘oversight’ role that exceeds their Constitutional responsibility to decide cases and controversies.” Oversight is provided by the legislature, and it would not be wise to have the courts taking over any duties of the legislature. If complaints about “activist judges” are common now, they would get increasingly common and much more justified if the courts were taking on the duties of duly-elected legislators.

Related: Is there going to be more transparency?

In this article, the author reports on the ongoing movement to increase the transparency of data collection by the NSA. Specifically, companies will now be allowed to report the data collection to the extent that they can report the number of FISA Court orders they receive and the number of users affected, though with some stark limitations. The reporting is subject to a delay which allows law enforcement to use it without being concerned that it will tip their hand to the people being investigated and the requests should be reported in batches rather than individually. While some people might find this to be a far cry from the level of transparency they would prefer, it was sufficient to get a variety of well-known technology companies to drop their lawsuits regarding the matter.

The author provides a link to the statement on the Department of Justice website which provides a text version of the joint statement by Attorney General Eric Holder and Director of National Intelligence James Clapper. He also provides information regarding changes to Apple’s reporting based on the revised guidelines (they released significantly more information), and clues the reader in to the possible relationship of this move toward transparency and information leaked to the press by Edward Snowden indicating that the U.S. intelligence community was using popular mobile applications as a source for data collection.

The implications of this change are probably not all that dramatic, much to the chagrin of privacy advocates and much to the relief of U.S. intelligence agencies. To quote the DOJ’s official announcement, the administration decided that, “…the public interest in disclosing this information now outweighs the national security concerns that required its classification.” Not to put too fine a point on it, but what this actually means is that this reporting does not impact their capacity to gather information confidentially and use it effectively in the slightest; the administration is sacrificing nothing of real value here and gaining something very important. It is much better to have a public aware of how extensive its government’s data collection really is than a public who does not and assumes that it is far worse than it really is, causing panic and unrest.

The implications for consumers are much more positive, specifically in the availability of information about data collection being performed on the services and products they use most frequently. People who prefer not to use services being used for data collection can do so for whatever good reasons or not so good reasons they might have in mind. More importantly, it means that the public can keep an eye on the intelligence agencies in the event that oversight is needed. While Congressional oversight is of course in place. Public outrage can provide perspective that might not be gained from speaking to Representatives or Senators who are very accustomed to the idea that much of the work of government takes place behind the scenes and in the shadows. The disadvantage of public oversight is that most citizens do not have sufficient legal background to understand the court decisions, regulatory frameworks, and common practices used by intelligence agencies during their data collection activities, which can lead to unnecessary outrage at reasonable measures being taken by those agencies.

Related: Why is the NSA being reformed?

In this article, the author explains some of the implications of a story found in the New York Times, a story that seems positive for civil liberties activists in the arena of privacy. Apparently, the Obama administration will be announcing legislation to reduce certain kinds of data-gathering intelligence activities conducted by the NSA. This announcement will be regarding the Section 215 program, a data collection project which was authorized to store the phone records of citizens for several years, presumably to run large-scale data analysis to look for communication patterns that might help with tracking terrorist cells and the like.

The author explains that going forward, this kind of data collection from phone companies would need to be conducted with a court order rather than as a general policy of permanent surveillance. The author notes that this permanent surveillance is precisely what the ACLU objects to about the Section 215 program. This permanent surveillance may not be ending anytime soon depending on which way Congress votes on the legislation proposed by the administration, and the FISA courts still have to be given input into the potential changes to their processes which would be engendered by the legislation.

My overriding question here is: why seek to change the law? The administration has defended these programs previously; even President Obama himself has defended them. The programs are currently legal, so it is not as if there are too many serious legal challenges which can be posed unless groups like the ACLU can manage to find a creative way to argue a Constitutional privacy question, which seems unlikely given how long these programs have been legal. It is possible that the administration wants to avoid a protracted court battle with the ACLU and get dragged through the media circus that would no doubt follow it. It is also possible that the program really has not helped the administration catch terrorists, and so for practical reasons it is better for them to act in the interest of transparency where it does not cost them any effectiveness in combating terrorism.

Another possibility is that the administration believes that public sentiment is too strongly against Section 215 (and possibly PRISM) to not act to reduce or eliminate the programs. One factor may be that the administration has doubts about the next administration and wants to ensure that the next administration does not have access to this broad surveillance power over American citizens on U.S. soil. Whatever the reasons (and it could well be several of these or none of these), many concerned citizens and civil liberties activists will be happy about any reduction in the scope of what many of them describe as the “surveillance state” or “Big Brother”. I personally will be glad as well because I don’t think that government programs that aren’t very beneficial should be continued. There is no need to waste taxpayer funds on a program that really is not doing what it is supposed to be doing: helping catch terrorists. Also, we have warrants and probable cause standards for a reason, so I see no need to dispense with them, even and perhaps especially when they are inconvenient for government agencies seeking to acquire large amounts of data on the activities of many citizens.

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