February 20, 2014

Working Out the Details of NSA Reform

Massive surveillance may continue – even grow – as reforms are considered.

High-ranking members of the intelligence community and civil liberties advocates are trying to figure out just how the government will go about implementing the changes Barak Obama recently proposed for the NSA. But what they’ve come up with doesn’t instill a lot of confidence. Obama called for a number of changes to the government’s intelligence gathering infrastructure, including a prohibition on spying on allied leaders and restrictions on gathering and holding data on non-citizens overseas. Both restrictions can, of course, be rescinded if there is a compelling national security purpose – a loophole so broad a Mack truck could drive through it.

One slightly more troubling proposal includes the creation of a privacy advocate that would have a voice in the Foreign Intelligence Surveillance Court, which currently only hears the government’s side of any national security issue. Injecting a third party into this area of the intelligence infrastructure is fraught with problems. National security information could be compromised and legal proceedings could severely gum up legitimate investigations. Just imagine the damage that could be done if the ACLU had a voice in a FISA court.

The biggest issue of debate, however, is just what to do with the massive amounts of data collected by the NSA’s phone surveillance program. The president proposed putting the collected information in a third-party repository that the NSA would have to seek permission in order to access. No one is sure exactly what this would look like, but telecommunications companies want no part of it. There is no way to guarantee the safety of the data in the hands of a private enterprise, considering the data hacks that take place in the private sector these days. And if the third-party is some quasi public-private institution (think Fannie Mae for spies), who is to say that the operation can be run without leaks, political shenanigans or costly bureaucratic error?

Little mention is made about what to do with the data the NSA currently possesses; these plans are all concerned with future changes, not retroactive ones. However, The Wall Street Journal reports, “The government is considering enlarging the National Security Agency’s controversial collection of Americans’ phone records – an unintended consequence of lawsuits seeking to stop the surveillance program.”

Meanwhile, Director of National Intelligence James Clapper argued this week that none of this would be necessary had the American public been aware of the NSA surveillance program from the start. Clapper thinks that Americans would have been fine with the extent of the program if the government had just explained its necessity right after 9/11. This, of course, doesn’t excuse his lying to Congress last year about the existence of the program, but that’s okay, too, because Clapper still believes the program is constitutional and effective, despite growing evidence that it is neither.

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