NSA surveillance reform: A tilt toward privacy over security?

Article Highlights

  • Then NSA Director General Keith Alexander had already publicly stated his opposition to ending the government’s control of the metadata program

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  • The bill requires that the FISA Court review individual requests for data rather than reviewing a basket of requests over a three-month period

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  • There can be no doubt that ultimately the security agencies will reap a benefit

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Several months ago, I predicted that in the debate over proposed NSA surveillance reform, NSA’s security defenders would ultimately hold the line against significant changes in the current mode of operation. Traditionally, security trumps privacy. But at this point in time, the tide seems to be going the other way.

Last week, the chairman of the Senate Judiciary Committee, Sen. Patrick Leahy (D-VT), introduced a version of the USA Freedom Act that is far more restrictive on intelligence agencies’ operations than any other competing bill. Surprisingly, given the deep political divisions, Leahy’s bill seems to have swept the field. As Jodie Liu and Benjamin Wittes write in Lawfare, “It’s the bill. It represents a compromise between the intelligence community, the administration more generally, civil liberties groups, industry, and a fairly wide range of senators. And it will be the legislation that moves forward with the sometimes nose-holding support of most of the major parties.” What follows is a brief review of how we got here – and the future prospects for NSA surveillance reform.

One can start with President Obama’s much heralded but ultimately noncommittal speech on NSA and FISA court reforms in January. In his “leading from behind” mode, the president laid down general principles but left it to Congress and various interest groups to fill in the specifics. Reactions to the president’s speech were decidedly mixed and reflected the strong, opposing viewpoints across the security-privacy spectrum. Then NSA Director General Keith Alexander had already publicly stated his opposition to ending the government’s control of the metadata program. His skepticism regarding this and other elements of the administration’s proposed FISA reforms was echoed publicly by the chairmen and ranking members of both the Senate and House Intelligence Committees.

On the other side, numerous privacy and civil liberties organizations – the ACLU, Electronic Frontier Foundation, Center for Democracy and Technology, et. al. – immediately clamored for legally binding, tighter restrictions on NSA/CIA/FBI surveillance activities. They were joined by a Who’s Who of high-tech companies, including Microsoft, Google, Amazon, Yahoo, Apple, Verizon, Facebook, Twitter, and LinkedIn.

Jockeying among congressional committees provides one central focus for the narrative over the past six months. Jurisdiction over NSA/FISA reform is split between the Intelligence and Judiciary Committees in both houses, with primary power traditionally residing in the Intelligence Committees.  Pursuant to the president’s proposals, the House Intelligence Committee began working on a bill to partially revamp intelligence community and FISA Court procedures. But in a surprising turn of events, a competing bill from the House Judiciary Committee developed strong bipartisan support and 163 sponsors. At that point, House Intelligence Committee leadership capitulated and entered into negotiations with the administration and with Rep. Sensenbrenner and others on the Judiciary Committee. This in turn led to a Judiciary Committee version of the USA Freedom Act that was revised in late negotiations to assuage concerns among both the administration and Intelligence committee members. This bill passed the House on May 21, 303-121.

Giving evidence of how far the pendulum has swung in recent months, however, both civil libertarian groups and high-tech companies came down hard against the House bill as passed, and demanded further restrictions and changes in current policy and practice. This set the stage for Senate Judiciary Chairman Leahy to seize the lead and rally a broad political coalition behind his own revised bill.

The Leahy USA Freedom Act bill.

Without delving too deep into the legislative weeds, here are the most important provisions of the Senate Judiciary bill:

 1. The most widely debated new language ends bulk collection of metadata by the government under Section 215 of the Patriot Act. It also mandates that applications of information be relevant to an authorized investigation of international terrorism or clandestine intelligence activities (excluding more general law enforcement rationales). Furthermore, it would substantially narrow the so-called “specific selection term,” prohibiting broad requests such as a geographic region, city, state, zip, or area code if these identifiers are not the original or exclusive identifier.

2. The bill tightens the criteria for applications to obtain so-called “call detail records.” It requires that requests must show that such detailed records are pertinent to an investigation, and that there is a reasonable suspicion that the specific selection term is associated with a foreign government. Further, a call detail record may not contain the address of a subscriber or customer, including the electronic as well as the physical address.

3. In the most important administrative change, the bill requires that the FISA Court review individual requests for data rather than reviewing a basket of requests over a three-month period.

4. Importantly, there is no mandate for telecommunications companies to retain call record data.

5. The bill facilitates the ability of persons and companies to challenge “nondisclosure orders” from intelligence agencies. It eliminates the power of the Attorney General or FBI to issue a “certification” that disclosure would endanger the security of the US or damage diplomatic relations. In the past, such a certification has been taken as conclusive by FISA Court judges when considering appeals to modify or set aside a nondisclosure order.

6. New Disclosure Requirements. The Leahy bill requires more extensive disclosure of data regarding the number of orders and certifications sought and obtained, and estimates of the number of people targeted and affected by surveillance. This represents a significant victory for high-tech companies who have been urgently demanding more disclosure to counter overseas allegations of their complicity with US government security operations.

7. FISA Court Reform. The Leahy bill does not adopt a full public advocate model, but rather requires the FISA Court to consult with the Privacy and Civil Liberties Oversight Board to jointly appoint 5 special advocates to serve as amici (friends of the court) in particular cases. The FISA Court still may veto an appointment, but the bill creates a much stronger presumption in favor of outside involvement. The special advocates will have advocacy powers on issues of privacy and civil liberties and have access to all pertinent material, including classified documents. The bill would establish additional procedures for appellate review of FISA Court decisions, mandating that the FISA Court of Review be called upon where an important “question of law” is at issue or where such a review would “serve the interests of justice.”

8. Privacy Rights for Non-US nationals. Finally, the Leahy bill is noteworthy for what it does not include: significant new provisions for privacy rights for non-US nationals. In that regard, the bill also does not touch Section 702 of the Patriot Act, the provision that provides terms for US spying abroad. Both are highly volatile, divisive issues that will continue to rankle both security officials and civil libertarians.

Here are some final thoughts and observations. First, a caution: the Leahy bill has just been introduced. Though initial support seems strong across a wide spectrum (and the Obama administration has generally endorsed its provisions), there could be pitfalls ahead and a backlash, particularly from the security community. Further, with Congress only in session for three weeks after the summer recess, time may not be on the side of full legislative action this year – or at least not before a lame duck session. Second, while the president did lay down broad guidelines early on, it is surprising how “hands-off” the administration’s stance has been since January. It basically endorsed both the House bill and the more recent Leahy bill, despite the fact that the bills are starkly different in essential details. Third, in explaining the distinct shift toward more privacy and transparency provisions in the competing bills, much weight has to be given to events occurring in the background: the slow drip of Snowden revelations, combined with more near-term political blunders by the intelligence agencies. Particularly noteworthy was the bumbling recruitment of a counteragent to spy on the German intelligence agency (after the huge furor over tapping Chancellor Merkel’s phone) and the CIA’s “shot yourself in the foot” antagonizing and lying to Sen. Diane Feinstein, one of the security agencies’ most stalwart supporters.

Readers who want succinct, trenchant critiques of the NSA surveillance reform proposals described above are referred to the Wall Street Journal editorials of January 16 and May 22. In the view espoused here, there is merit to the concerns that the new metadata process is so cumbersome and protracted that it may impair the ability to ward off future well-planned terrorist attacks. An open-minded, continuous assessment is thus in order. On the controversial change related to a public advocacy role before the FISA Court, however, there can be no doubt that ultimately the security agencies will reap a benefit. One does not have to subscribe to the view that the FISA Court has been a “patsy” for the security establishment, to hold that an independent, internal “other pair of eyes” will enhance the credibility of future legal reviews of data requests.

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