Unsurprisingly, our elected officials are split over the NSA surveillance program. They're split over everything, aren't they? The only semi-surprise is that the splits cross party lines, with one prominent Democrat, Senate Judiciary Committee Chairman Patrick Leahy calling for abolishment of NSA call-tracking, while Senate Intelligence Committee Chairwoman Dianne Feinstein passionately advocates for keeping the program, with a few minor reforms.
Add proposed legislation reforming the program, introduced by Sens. Ron Wyden (D-OR), Mark Udall (D-CO), and Rand Paul (R-KY), and a near-passage of a bill killing the program earlier this year, and it seems that change is coming. It remains to be seen what those changes will be, however.
Feinstein's Mild Reforms
Back in late-July, Sen. Feinstein wrote an op-ed for The Washington Post, arguing that the program was critical for national security, and proposing a few reforms to make the program more transparent, including:
- Annual disclosure of the number of phone number queries, as well as referrals to the FBI;
- Annual disclosure of the number of warrants obtained (with probable cause) by the FBI;
- Annual disclosure of the number of times businesses are required to turn over records;
- All FISA Court opinions and reports on persons targeted for surveillance made available to members of Congress;
- Phone records retained for two or three years, instead of five;
- Adjust the "ideological diversity" of the FISA court (Chief Justice Roberts has appointed 86 percent Republicans, the vast majority of which were former prosecutors);
- FISA court reviews every query of the database ASAP after the fact.
These are interesting "reforms," but does anyone think they would make even the slightest difference? We'd also note that much of the information provided by Sen. Feinstein to justify the program has since been debunked, especially the claim that 54 terrorist events have been interrupted as a result of the program.
Sen. Leahy, in a hearing on the matter last week, noted that information from the Obama administration had been inaccurate and incomplete, especially the number of foiled plots, reports Politico.
"That's plainly wrong. These weren't all plots, and they weren't all thwarted," he said, before noting, "We get more in the newspapers than we do in the classified briefings that you give us."
Another reform repeatedly mentioned, both in the hearings, and in the Wyden-Udall-Paul legislation, is adding a privacy advocate to the Foreign Intelligence Surveillance Court. This idea has a lot more potential than the Feinstein reforms.
The current FISC consists of one-sided requests for surveillance. Adding a privacy advocate would bring the benefits of the adversarial system to the FISC, and would ensure a constitutional voice to object to secret surveillance requests.
End the Program Altogether
Sen. Leahy stands alone on ending the call-tracking program, for now. During last week's hearings, he made his position clear, stating, "Just because something is technologically possible, and just because something may be deemed technically legal, does not mean that it is the right thing to do."
- Sen. Patrick Leahy calls for end to NSA bulk phone records program (Washington Post)
- Google in the News: NSA Target, FISC Amended Motion and More (FindLaw's Technologist Blog)
- No Smartphone is Sacred: NSA Hacks All Major Platforms (FindLaw's Technologist Blog)