Senate must rein in the NSA

By Elizabeth Goitein
June 2, 2014

An illustration picture shows the logo of the U.S. National Security Agency on the display of an iPhone in Berlin

The House of Representatives seemed poised last month to rein in the government’s ability to spy on its citizens by prohibiting the bulk collection of Americans’ telephone records. On the eve of the vote, however, the Obama administration and House leadership intervened. In secret negotiations, they took a carving knife to the bill, removing key privacy protections.

It is now up to the Senate to breathe life back into this National Security Agency reform effort. The Senate Judiciary Committee is expected to take up the bill, known as the USA Freedom Act, this month. Panel members must hold firm on ending the bulk collection program and restoring limits on the NSA’s ever-expanding surveillance activities.

The laws that Congress passed after 9/11 sought to aid intelligence gathering against foreign terrorist threats. They have now morphed, however, into tools for the mass collection of information about U.S. citizens as well as foreigners.

An Aerial view of the National Security Agency in Fort MeadeUnder a provision of the Patriot Act that allows the FBI to obtain items “relevant” to an international terrorism investigation, the NSA for years has been collecting records of virtually every landline-based phone call that Americans make or receive.

The Foreign Intelligence Surveillance Court secretly approved this action. Though the court prohibited the NSA from searching the records without reasonable suspicion of a terrorist link, declassified court opinions exposed the NSA’s shoddy record of compliance.

The Senate Judiciary Committee’s first task should be closing the loophole that was slipped into the USA Freedom Act’s bulk collection ban. The bill’s earlier version required any government request for records be tied to a particular person, entity or account. But intelligence officials persuaded the House leadership to insert a strategic ambiguity — allowing the government to choose the “specific selection terms” it can use to identify records.

Though it would likely violate Congress’s intent if the NSA used, for example, entire zip codes as its “specific selection terms,” it would arguably not violate the bill’s current language. That small opening, history shows, is all the leeway that the NSA and Foreign Intelligence Surveillance Court need. Congress, not the agency, should decide how the government must frame its requests.

The Senate committee should then address the privacy of the communications themselves. Under a 2008 statute, the government can collect the calls and emails of foreign overseas targets without a warrant. Though Americans’ communications are often swept up incidentally, the law requires the government to “minimize” their retention and use.

Satellite dishes are seen at GCHQ's outpost at Bude, close to where trans-Atlantic fibre-optic cables come ashore in Cornwall, southwest EnglandInstead, as former NSA contractor Edward Snowden has revealed, the government runs searches of the collected communications in order to find and review Americans’ calls and emails.

The committee should end these “back-door searches” by specifying that the government needs a warrant to search for Americans’ information. In addition, the Senate committee should prohibit warrantless collection if targeting an American is any part of the government’s purpose.

The committee must ensure that the bill contains robust transparency provisions. In its original form, the bill required the government and allowed telephone and Internet companies to disclose detailed statistics about their surveillance transactions. Yet, despite intelligence officials’ recent public statements lauding the value of openness, they succeeded in diluting these provisions.

There is no excuse for hiding statistics divorced from any identifying information. Americans should know exactly how often the government collects their communications and records.

The same goal underlies all these changes: Surveillance laws must be used as Congress intended. A law allowing the government to obtain business records “relevant” to a terrorism investigation should not be used to collect every American’s telephone records. A law allowing the government to collect the communications of foreigners overseas should not be used to search for Americans’ calls and e-mails.

These points should be uncontroversial — especially given the lack of evidence that either bulk collection or back-door searches have significantly furthered counterterrorism efforts.

These basic reforms will reinforce principles too long honored in the breach: intelligence agencies should collect information about Americans only where there is reason to suspect wrongdoing, and only under publicly disclosed authorities.

Embracing these principles will serve Congress and the American people well — not only in the current legislative debate, but in the wider debate about the future of government surveillance.

 

PHOTO (TOP): An illustration picture shows the logo of the U.S. National Security Agency on the display of an iPhone in Berlin, June 7, 2013. REUTERS/Pawel Kopczynski

PHOTO (INSERT 1): The National Security Agency is pictured from the air at Fort Meade, Maryland. September 19, 2007. REUTERS/Jason Reed

PHOTO (INSERT 2): Satellite dishes at GCHQ’s outpost at Bude, close to where trans-Atlantic fibre-optic cables come ashore in Cornwall, southwest England, June 23, 2013. REUTERS/Kieran Doherty

 

3 comments

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Lets see….

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How to Fix the FBI: It Shouldn’t Be an Intelligence Agency
Mike German

It is time for Congress to conduct a thorough examination of the FBI’s use of its post-9/11 authorities to end programs that are unnecessary, ineffective, or prone to abuse.

The CIA’s Torture Two-Step
Victoria Bassetti

Is CIA reform even possible when it fights so relentlessly against disclosure of its misdeeds?

Recent Litigation

Riley v. California (Amicus Brief)

In this amicus brief, the Brennan Center argues that law enforcement officers should not be allowed to search the contents of a cellphone without a warrant.

Al Falah Center v. Township of Bridgewater

The Al Falah Center brought suit against the Township of Bridgewater, N.J. to compel the township to allow Al Falah to move forward with plans to renovate an existing building for use as a mosque and Islamic community center.

United States v. Jones (Amicus Brief)

The Brennan Center filed an amicus brief arguing that the prolonged, warrantless use of GPS tracking devices to monitor a suspect’s behavior is unconstitutional.

Kiyemba v. Obama (Amicus Brief)

The Brennan Center for Justice, along with a group of other organizations, has submitted three amici briefs in support of the D.C. District Court’s ruling that the government must release into the United States a group of Uighurs detained at Guantánamo Bay.

Ali Saleh Kahlah al-Marri

The Center defended a Qatari national detained as an “enemy combatant” in the United States in his habeas corpus action that challenged the Executive’s claim to unchecked authority to indefinitely detain a legal reesident of the U.S. without any charge of wrongdoing. Mr. al-Marri was imprisoned without trial and without due process between 2003 and 2009.

Boumediene v. Bush (Amicus Brief)

In August 2007, the Brennan Center filed an amicus brief in the U.S. Supreme Court on behalf of habeas corpus scholars in the United States and in the United Kingdom, explaining why habeas corpus rights must be granted to individuals held in Guantánamo Bay.

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So basically, you’re just one of those liberal ‘civil liberties’ groups, that always assumes the bad guys are good, and the good guys are bad, and you’ll do whatever it takes to make the job of authorities as difficult as possible… then blame them when something goes wrong. Kind of like how people are trying to blame the cops who handled the kid in CA, that killed a bunch of people. It’s all their fault for not doing enough, even though groups like yours have basically made it impossible to arrest, detain, or search anyone, unless they’ve pretty much already committed a major crime. It’s groups like yours that fight to allow nuts like that, to be able to do whatever they want… until it’s too late. But it’s all the fault of the authorities though, right? They’re the bad guys.

Posted by dd606 | Report as abusive

It is not going to happen…It is not going to happen….

Anyone thinking that the Senate will reign in the NSA needs to read Dianne Feinstein’s patronizing closing paragraph to me in her reply to my letter expressing concern about the legality of the NSA’s spying programs:

“Again, please know that although we may not agree on this subject, your correspondence is important to me and I value your contribution to the ongoing debate about U.S. national security programs. If you have any additional comments or concerns, please do not hesitate to contact my Washington, D.C. office at (202) 224-3841.

Sincerely yours,

Dianne Feinstein
United States Senator”

-9/20/2013.

Give her a call and see for yourself….

Posted by HardHeadedDane | Report as abusive

@HardHeadedDane

Do you really think you were corresponding with anyone other than one of her aides ?

Posted by Laster | Report as abusive