Other’s Opinion: More questions than answers on NSA surveillance

Published 11:25 am Friday, January 24, 2014

Revelations from rogue National Security Agency contractor Edward Snowden about the extent of NSA surveillance have triggered a necessary national debate about the balance between security and privacy.

Recent contradictory court rulings, both of which are being appealed and may ultimately reach the Supreme Court, have alternately called the program “almost-Orwellian” and “lawful.”

Meanwhile, President Obama’s recommended changes to the program, which he outlined last week, do not go far enough in recalibrating the balance between privacy and security. In fact, he should have accepted many more, if not all, of the 46 recommendations submitted by a panel he commissioned in response to Snowden’s disclosures.

Email newsletter signup

Instead, he moved on just a few issues, and even some of these still need yet further study and will be difficult to implement. For instance, Obama is amenable to keeping phone records with either a private consortium or directly with the phone companies until the NSA needs to access them. But for now, the status quo of government control will remain, at least until Congress and the administration can decide on the wisest course. The delay does not increase confidence that this key issue will be resolved satisfactorily, or soon.

More promisingly, Obama did accept the panel’s advice on requiring court permission for each search. And the phone surveillance would be reduced to two links — called “hops” in surveillance circles — from the current three. This would greatly reduce the number of phone records examined as well as the chance of completely innocent people being subject to an NSA dragnet.

The panel also urged Obama to require a judge to sign off on subpoenas, commonly called National Security Letters. On this recommendation, too, Obama took a half step: He will not require court action, but he will reduce secrecy and allow providers to be more transparent about the nature and number of these requests. While increased transparency is welcome, it does not fundamentally address the need for more judicial oversight.

On another front, Obama called on Congress to “authorize a panel of advocates from outside government to provide an independent voice in significant cases before the Foreign Intelligence Surveillance Court.” As with other issues, “significant” was undefined.

Globalization of communication means that it’s not just Americans subject to scrutiny. This is not only a foreign policy issue, but a business problem for many American firms. The panel suggested that foreigners receive roughly the same treatment as U.S. citizens in terms of privacy. Obama opted to “develop new safeguards,” but was not overly specific.

The president was encouragingly clearer when it came to another foreign policy blunder: surveillance of world leaders. Multiple diplomatic crises were caused by this stupidity — a fact not lost on Obama. “The leaders of our close friends and allies deserve to know that if I want to learn what they think about an issue, I will pick up the phone to call them, rather than turning to surveillance,” he said. Still, Obama didn’t define America’s “close friends and allies,” which could create a whole new level of diplomatic uncertainty.

Indeed, uncertainty seems to still surround the fundamental debate about the legality, let alone the efficacy, of U.S. surveillance of phone records. Reflecting this robust debate are the rulings by U.S. District Courts in Washington and New York.

In Washington, Judge Richard Leon not only referenced George Orwell, but suggested that James Madison would be “aghast” about a program based on a 34-year-old precedent “the relevance of which has been eclipsed by technological advances and a cellphone centric lifestyle heretofore inconceivable.”

Conversely, in New York, Judge William H. Pauley III wrote: “The effectiveness of bulk telephony metadata collection cannot be seriously disputed.”

The conflicting interpretations of NSA surveillance have similarly separated many key congressional leaders, and even some in the national security community. This debate needs to proceed at all levels. In the meantime, the limited reforms outlined last week should be quickly implemented, and Congress should continue to prod the president to reconsider the recommendations he rejected.