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Dec 23 2013

The NSA Commission’s Report is Released

The Review Group on Intelligence and Communications Technologies, created by President Obama in the wake of the Snowden revelations, has released its 300 page report. I haven’t had a chance to read it yet, but Amy Davidson has a summary of its positions and recommendations.

President Obama’s advisory committee on the N.S.A.’s practices has given him a report, released by the White House on Wednesday, that is three hundred pages long and includes forty recommendations. Some of the recommendations include specific steps to be taken or suggest changes to structures and procedures—that there be a public-interest advocate to “represent privacy and civil liberties interests before the Foreign Intelligence Surveillance Court”; that phone records be held by phone companies and not the government; that tech companies not leave vulnerabilities in their products that allow the N.S.A. slip in—but most of all it argues for a change in thinking. The thirty-page executive summary might be further condensed to a few sentences: Don’t do things just because you can. Tell people what the rules are. Remember that “security” doesn’t just mean chasing terrorists—it “refers to a quite different and equally fundamental value,” spelled out in the Fourth Amendment: “The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Stop shutting down debate by muttering about a “balance” that needs to be struck between security and freedom—they are not on opposite sides of the scale. Start thinking about privacy.

It is sobering to see how many of the recommendations include writing into law requirements that the N.S.A. not use certain of its powers unless it has a good reason to do so and does so prudently. The agency has to be told, apparently, that it can only invoke Section 215 of the Patriot Act (the so-called business-records provision) or issue national-security letters to e-mail providers asking for information about their customers if “the order is reasonable in focus, scope, and breadth”—and it has to be told that with the force of law. This appears to be an acknowledgement that, so far, the use of these provisions has not been reasonable.

I said quite some time ago that there needs to be an advocate for the 4th Amendment in the FISA court. I think the ACLU should have a permanent position there, an advocate with a security clearance who gets to evaluate every argument the government makes in front of that court and challenge them when those positions are not in line with the Constitution.

But yes, the fact that they even have to be told that they are constrained by the Constitution is appalling and depressing. And that’s why I have very little faith that anything will come of this report. Do you see legislation passing Congress and getting signed by Obama that would impose any genuine reforms or meaningful safeguards on the government’s surveillance powers? I don’t either.

7 comments

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  1. 1
    Michael Heath

    I think the left is making mostly cogent arguments in their objecting to the U.S. intelligence apparatus extending their powers well beyond what’s constitutional. I’d include the FISA courts in that apparatus. However I also see many of these arguments as naive and in denial or avoidance of the threats faced by our defense apparatus.

    I don’t see cogent arguments coming from advocates of what the intelligence community is doing, that’s because such advocates are primarily conservatives who are no longer able to make any cogent arguments on any topic. Democratic members of Congress who favor what we’re now doing have also been equally bad, choosing opaque authoritarian justifications for intrusiveness, e.g., Sen. Dianne Feinstein. Many of their arguments are circular in nature, e.g., we need these intrusive policies because they really are constitutional (they’re not).

    However, on this issue I think there does need to be pervasive compelling arguments for a security state more intrusive to what the left wants. Not because the left is necessarily wrong but instead because our society demands zero defects from the NSA and CIA while being mostly oblivious to the nature and existence of emergent threats, particularly cyber-threats. While I’m not one of those zero defect demanders, I do support aggressive intelligence services.

    Like most reasonable people who’ve commented elsewhere, I found the journalistic aspect of the recent 60 Minutes interviews with the NSA absurdly bad. That segment was more infomercial for the NSA then investigative journalism. However I did find the NSA interview subjects to be smart, articulate, and seemingly dedicated public servants. So I think the best context for deciding how to pressure our members of Congress and the president for the right balance is more transparency from members of the actual intelligence services defending what the powers they seek.

    I think such exposure would be helpful to the intelligence services when it comes to their desire to reduce the threat. Their political advocates are simply incapable of carrying their flag where the intelligence services seem to be the only effective advocates in the public square taking their position. I also think these experts defending their objectives would better help non-conservative citizens formulate less naive responses delegating powers to the intelligence community while still optimizing the protection of our liberty rights.

    Like Ed I think the FISA courts have a far bigger role to play in these issues, they shouldn’t be a rubber stamp outfit that’s also restricted from hearing some cases. Instead they should be active and powerful participants whose powers to defend the Constitution are more powerful than the intelligence community’s ability to do its job. But the threats are real and some emergent ones can be catastrophic. As we increasingly build-out the Internet, those cyber threats will both increase and the risk for damage will also increase. So we need an effective voice on the side of minimizing such threats, and that’s something I rarely encounter.

  2. 2
    StevoR : Free West Papua, free Tibet, let the Chagossians return!

    Do you see legislation passing Congress and getting signed by Obama that would impose any genuine reforms or meaningful safeguards on the government’s surveillance powers?

    Yeah, Obama is a good dude so .

    I don’t either.

    Huh? but I said .. Oh crap that was a rhettorical question weren’t it? Dangnabbit!

    Oh well. Don’ see any US President doing anything else in the circumstances.

    What kind o’person turns down such powers when they’s offered?

    Not most persons. Not those who seek power in the firs’ place that’s fa sure.

    Anyone really surprised?

    Anyone got any ideas how to change it or shift this hard to turn liners momenum around?

  3. 3
    DaveL

    Not because the left is necessarily wrong but instead because our society demands zero defects from the NSA and CIA while being mostly oblivious to the nature and existence of emergent threats, particularly cyber-threats. While I’m not one of those zero defect demanders, I do support aggressive intelligence services.

    I see the zero-defect demand as one of the fundamental problems with our national discourse on security. I think it ought to be clear by now that a zero-defect security system, while an admirable goal, is not achievable in practice. On the other hand it is certainly achievable to give away far too much of our freedom and treasure in the pursuit thereof. Getting people used to the idea that the government cannot furnish them with total safety at any price is going to be a hard sell, but it’s something that needs selling.

    Overall, I find this summary encouraging, especially in how it breaks with the freedom/security false dichotomy that has dominated public discourse since, well, as long as I can remember.

  4. 4
    Friendly

    While I’m not one of those zero defect demanders, I do support aggressive intelligence services.

    I can’t speak for anyone else — which, of course, is the central problem of my position — but if my getting blown up is the cost that must be paid so that all Americans can live in a more free and open society where privacy is respected because intelligence is not “aggressive,” I’ll gladly pay it.

  5. 5
    Johnny Vector

    DaveL:

    I think it ought to be clear by now that a zero-defect security system, while an admirable goal, is not achievable in practice.

    It isn’t even achievable in theory. We’ve known this since 1931. New rule: Before you are allowed to comment on the completeness of a security system, you have to read and understand Gödel, Escher, Bach (or Gödel’s proofs themselves).

  6. 6
    D. C. Sessions

    Start thinking about privacy.

    They’ve always thought about privacy. It’s one of the biggest obstacles they have to deal with.

  7. 7
    maddog1129

    What’s wrong with the regular courts? Do away with the FISA court

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