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What happened to NSA reform and where does it go from here?

By   /  November 11, 2014  /  No Comments

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Over eighteen months have passed since Edward Snowden first disclosed the extent of the National Security Agency’s (NSA) surveillance programs. [1] Snowden revealed two main programs: the business records program that includes phone history collections, and the PRISM program that collects information about electronic communications. The business records program operates under Section 215 of the PATRIOT Act. [] PRISM operates under Section 702 of the Foreign Intelligence Surveillance Act (FISA). [3] In the aftermath of the disclosures, over a dozen bills were introduced in the Congress to reign in the NSA. [4] In May of 2014, the House passed a limited version of the USA Freedom Act, which shifted the burden for preserving phone records to telecommunication companies; notably, by the time the House voted on a final version, the bill had lost the support of privacy advocates and the technology community. [5] The Senate has not voted on the bill. [6]

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The reform proposals vary in detail but mainly focus on 1) narrowing requirements for Section 215 collection orders; 2) increasing disclosure from the Foreign Intelligence Surveillance Court (FISC), the government, and companies compelled to produce records; and 3) reforming the FISC’s makeup and procedures. [7] The complexity of the competing interests makes reforming the entire process very difficult. For example, just one specific reform proposal—making hearings before the FISC an adversarial process—is littered with complicated constitutional and policy implications. []

In the upcoming Congress with majorities in both chambers, Republicans may choose to focus on the economy, national security, health care, and immigration and the border before deciding to tackle NSA reform. At the very least, cohesion is needed between the various positions espoused by party leaders. Key Republicans have staked positions ranging from complete overhaul, to minor reforms, to maintaining the status quo. [9] [10] [11] [12]

Additionally, recent turmoil in the Middle-East and the increased focus on terrorism may have dampened the swell of public anger with the surveillance programs. A common argument of program supporters is that the only demonstrable harm of the surveillance is the fact that collections occurred. [13] Whether that is true may be debatable; but a divided Congressional leadership and an uptick in anti-terrorism sentiment do not likely bode well for significant NSA reform in the Congress.

So it appears for now the issue is left to the courts. Two notable cases are currently before U.S. circuit courts. In the D.C. Circuit, a three-judge panel just heard oral arguments in Klayman v. Obama on November 4th. [14] In the 2nd Circuit, a three-judge panel heard oral arguments in ACLU v. Clapper on September 2nd. [15]. The D.C. Circuit is considering a district court decision finding Section 215 likely unconstitutional, while the 2nd Circuit is considering a district court decision upholding the surveillance programs.

Both cases highlight the principles arguments of each side. The government argues that the plaintiffs in each case do not have standing because they cannot point to specific harm. The government next argues that the call history is voluntarily submitted to third party companies and is thus unprotected by legal interest. [16] For this argument the government relies on the 1979 Supreme Court case Smith v. Maryland, where the Court held that dialed phone numbers could be obtained by police without a warrant. [17] Finally, the government stresses in both cases that the collections are of metadata and not of content. [18]

The advocates argue that the pervasive and indiscriminate collection of data, approved by a court (the FISC) that only hears the government’s side of the argument, is in itself a violation of the Constitution. [19] They define the analysis of metadata as the equivalent of searching content. [20] The advocates also point to previous violations of FISC orders by the NSA as a key reason for stronger minimization procedures. [21]

Two proximate and likely distinguishable circuit court rulings could very well provoke consideration by the Supreme Court. In addition to those two cases, telecommunication companies have, while taking some criticism for complying with the records orders, also opposed the NSA programs in several instances. Facebook, Microsoft, Google, Yahoo, and Twitter have all challenged compulsion orders or fought for more disclosure. [22] [] [] [25] [26]

With comprehensive reform looking more complicated in Congress than last year after the Snowden disclosures, Americans will be anxious to see the pending opinions by the D.C. Circuit and 2nd Circuit Courts of Appeals.

[] ANDREW NOLAN ET AL., CONG. RESEARCH SERV., R43260, INTRODUCING A PUBLIC ADVOCATE INTO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT’S COURTS: SELECT LEGAL ISSUES (2013).

Image courtesy of DonkeyHotey via Flickr (license)


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