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Contracting and Expanding the NSA’s Powers

Can we be generous enough to say that Edward Snowden scored a considerable coup last week with the change in Washington’s attitudes to the National Security Agency? Even by his own admission, the whistleblower is pleased that the bulk collection of records may well be seeing its last days. In a statement released through the American Civil Liberties Union, Snowden used the term “turning point”, a rather tepid observation that did not detract from his overall sentiment.

A few plans are now on the table. There is the USA Freedom Act (Leahy-Sensenbrenner bill), the House Intelligence Committee Bill and the President’s own proposal. The latter has yet to find legislative form. President Obama’s proposal involves allowing phone companies to retain their databases of records in standardised, interoperable format. The focus on storage will shift from government agencies to telephony companies. The NSA would, in obtaining access, have to seek an order from the Foreign Intelligence Surveillance Court. In turn, the FISC would have to be satisfied that the records pertained to a person connected with a terrorist organisation.

The enthusiasm for the changes last week was certainly evident. The Baltimore Sun (Mar 24), in skewed fashion, saw the House Intelligence Committee’s efforts as ending bulk data collection. Jameel Jafeer, writing in Just Security, was questioning of the President’s proposals but did call it a “milestone. The administration’s proposal is an acknowledgment that a program that was endorsed in secret by all three branches of government, and that was in place for about a decade, has not survived public scrutiny.” Jafeer is also confident that this was “an acknowledgment that the government’s legitimate intelligence interests can be accommodated without placing the entire country under surveillance.”

Several points are worth mentioning. Which measure of suspicion the FISC is going to be using here is far from clear. Will it be “reasonable articulable”? There is every suggestion that the reforms are driving down the standard in various cases – from “probable cause” to “reasonable suspicion”. Given that documents recently released by the government have redacted the measure, we can only speculate. For all of that, the old escape clause of an “emergency” is permitted, a situation which exempts the NSA from having to go through the legislative limitations. Nor is it clear as the proposals take shape what will happen to records the NSA has already obtained and what will happen to those it obtains in future. The data mining facility is unlikely to be abandoned.

Section 215 of the PATRIOT Act is the key provision allowing for current bulk collection, so trimming it back, at least in terms of focus, is in order. But to do so without taking into account phone records obtained by national security letter statutes and the pen register would make such limitations moot. As Mike Masnick notes, this is a “high profile” killing of a program, rather than a whole sale revision.

The NSA will also be allowed to search up to two “hops” of numbers linked to a known terrorist number – meaning numbers connected to the initial suspect, followed by the first set of connections. This is unlikely to shut the door to continued constitutional violations, if not intentionally, then incidentally.

There is a striking addition to the NSA’s powers that will take place if Obama’s current proposals go through in their current form. The NSA would only be losing authority to collect and hold telephone calling records for up to five years from landlines. The loss, however, is not necessarily a grave one for the NSA. After all, such collection activities have been shown to be wasteful at best, an illegal intrusion at worst.

It should come as little surprise that the agency’s chief, the retiring Gen. Keith Alexander, has been seeking compromise about retaining the program in some form – after all, the collection authority of the organisation will expire in 18 months without Congressional approval. Obama agrees, rejecting calls from Democratic Senate Judiciary Committee Chairman Patrick Leahy, among others, to let the program lapse. Government must still be allowed “to obtain this information with the speed and in the manner that will be required to make this approach workable.”

The compromise has come in the form of collecting cellphone data, a considerable expansion of power given that the NSA claims that only 30 per cent of all call data of the country was being tapped into. Privacy advocates might cheering, but the NSA will be chortling.

The same questions pertain to the other measures being proposed. Those at the NSA have no reason to fear – a possible expansion of their powers is near. Rep Justin Amash, a critic of the NSA’s various collecting practices, observes that the Intelligence Committee Bill “doesn’t end bulk collection but actually puts more Americans in danger of having their constitutionally protected rights violated.”

The language of the bill is hostile to legal challenges, suggesting that an NSA order will actually be complied with rather than overturned. Orders can be challenged, but judges will be given power to dismiss any petitions aimed at the surveillance programs. As Tim Cushing from Techdirt explains, “It’s the NSA’s heckler’s veto, granted by the House Intelligence Committee and delivered by judges who will be forbidden from respecting any challenges to the government’s interpretation of these laws.” Scenarios such as the targeting of Snowden’s former email provider, Lavabit, come to mind.

Of the three, the Leahy-Sensenbrenner bill is ostensibly the most far reaching, permitting the government to collect data in the context of “ongoing” terrorism investigations. It has been rejected by the Intelligence Committee’s Republican chairman, Mike Rogers of Michigan and ranking Democrat Dutch Ruppersberger of Maryland. Both continue to see vast NSA intelligence gathering as indispensable fuel for the fire of liberty.

Snowden is correct to assume that the current batch of reforms would hardly have materialised without his stimulating kick. “I believed that if the NSA’s unconstitutional mass surveillance of Americans was known, it would not survive the scrutiny of the courts, the Congress, and the people.” Such efforts are hardly going to be rewarded with a medal – reforms might well be inching their way into the field of intelligence gathering, but they hardly suggest an improvement in the status of whistleblowers. The hemlock is still very much on offering.

As for Obama himself, these measures are modest panaceas designed to restore trust. “And that’s not going to happen overnight, because there’s a tendency to be sceptical of government and to be sceptical of the US intelligence services.” Reforms do have a habit, not so much of changing the status quo as readjusting and displacing it. Surveillance is being sharpened, rather than limited.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne.  Email: bkampmark@gmail.com

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Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

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