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.