Tag Archives: NSA

Fixing the problem of NSA spying

There’s been lots of talk about the problem of NSA spying the last few days, and some partisan braying about it.  But the real question is: what do we do now?  The reality is that the majority of Congress stands overwhelmingly in favor of these programs, and Presidents of both parties have supported these programs, which makes it highly unlikely that they’re going to be stopped completely.  What are practical things that can be done to ensure that the privacy impacts of these programs are limited while still giving the government the data it needs to investigate potential terrorist plots?

Realistic policy options fall into two categories:  1.) reduce what data can be collected and 2.) improve transparency.

Reducing the data the NSA can collect

Changing the data the NSA can collect would require Congressional action to modify the relevant statutes in place (principally Section 215 of the PATRIOT Act), and three primary ideas for accomplishing this have come forward:

  1. Allow the data collection to continue but require a warrant based on probable cause to access any of the records for a U.S. citizen.  This approach was introduced as legislation by Sen. Rand Paul (R-Kentucky), and would raise the legal standard for accessing the collected data.
  2. Limit data collection to eliminate purely domestic calls.  Raised as an alternative to the 2008 FISA Amendments Act, this would limit the collection of data to calls where at least one of the callers was foreign, except in cases where a definitive connection to terrorist activity could result in a warrant to acquire that data.
  3. Limit data collection to a suspicion-based standard.  Instead of doing a dragnet of all calls made, data collection could only occur records based on a reasonable suspicion of terrorist activity — of someone suspected of being a terrorist or spy, someone called by a terrorist suspect, or potentially somewhat broader searches, such as calls made from a building where terrorist activity is suspected of taking place.

Improve transparency of current programs

If none of the options above are taken to limit the data collected, perhaps the least we could expect is a better understanding of what sort of data collection is being done in our name.  Here are some of the options available to accomplish this:

  1. Declassify Foreign Intelligence Surveillance Court (FISC) decisions interpreting Section 215 of the PATRIOT Act.  Introduced today as a bill in the Senate by a bipartisan group of eight Senators, including Minnesota Sen. Al Franken, this bill would compel the release of these decisions, so the legal logic could be evaluated and debated.  President Obama could also choose to do this via executive order.
  2. Release more details about how these programs work.  Can the NSA listen in on calls?  If so, when and why?  What is the standard for accessing the collected call metadata?  How long is the data stored?  Has the data ever been accessed for “routine” police work, or is it access limited to solely terrorism/national security related issues?  How are the programs audited for potential abuse?
  3. Permit court challenges towards these programs to move forward.  Multiple lawsuits have been filed against the government over warrantless wiretapping and data collection, but all have failed to reach the trial phase.  This is because the government (under both the Bush and Obama Administrations) have fought these cases on a standing issue.  What this means is that the government has alleged that the persons bringing the lawsuit can’t prove that their data was collected or their calls listened to, so they can’t prove they were harmed by the activity.  With no harm, they don’t have standing to sue in court.  The Verizon allegations — which cover millions of Americans — may make it impossible for the Department of Justice to continue these sorts of claims going forward.  If the Administration feels they are on solid legal ground with these programs, they should allow these cases to go to trial and win them definitively.

None of these six ideas provide a definitive firewall between government and your personal data, but they are practical approaches that could work incrementally to improve the current situation.  Getting them accomplished, though, will require application of political pressure on politicians in both parties.  Calls and e-mails to your Senators and Representatives will help keep the ball moving forward.

Ortman back from War College: firing wildly and with shiny tap-dance shoes

As we mentioned earlier in the week, State Senator (and possible U.S. Senate candidate) Julianne Ortman spent the week at the Army War College’s National Security Seminar.   Part of a new Army recruit’s basic training regimen includes learning how to shine shoes.  Well, it seems Ortman may have taken a lesson or two while there because she came back ready to attack and with shined-up and ready-to-go tap dancing shoes.

Earlier today, Ortman fired off several rounds of criticism at U.S. Senator Al Franken on Twitter, which was countered by myself and a few others — not to defend Franken (because he and the rest of Congress have a lot to answer for), but rather to ask Ortman what she would have done instead.  After all, it’s easy to criticize, but harder to advocate alternatives.   We saw this in effect during this legislative session’s budget battle, where Republicans never articulated an alternative budget.

Did Franken “hide” his knowledge of the NSA program?

Ortman’s initial attack against Franken called out the Senator for “hiding” the NSA program.  As a member of the Judiciary Committee, Franken had been briefed on the program to some level of detail.  Well, it is certainly true that Franken did not comment publicly on this topic until yesterday.  Why is that?  Because it was illegal for Franken to discuss it publicly. 

Section 215 of the PATRIOT Act modifies Section 501 (d) of the Foreign Intelligence Surveillance Act as to say:

“No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.”

Even worse, the briefings that lawmakers received on such programs were subject to unusually stringent security.  Lawmakers were not allowed to take notes, staffers were not allowed to attend, and per the provisions of the law stated above, the lawmakers were prohibited from talking about the programs.

So did Franken “hide” his knowledge of the programs?  No.  Did he do enough to push back?  The record on that is unclear.  Two Democratic Senators, Ron Wyden of Oregon and Mark Udall of Colorado, have been pushing the limits on these programs, obliquely hinting that there was something afoot.

Ortman seems to be suggesting that Franken should have done more.  Perhaps that’s true.  But one can only imagine if Franken had violated the law and revealed details of a classified national security program.  I sincerely doubt that Ortman would be saluting his whistleblowing — rather, she’d be crying about Franken putting our national security at risk.

Ortman goes on to make an additional charge:  namely, that the PATRIOT Act didn’t authorize such programs.  Unfortunately, Ortman provides no basis to back up her claims that have any merit.  And, sadly, she tap-dances around any of the direct questions asked of her — would she have voted for the PATRIOT Act and FISA modifications?  What is her argument for why these programs were prohibited?  Where was her outrage when these programs were authorized under a Republican administration? Does she think Franken should have broken the law and spread details of these programs?

While I haven’t attended the National Security Seminar, I can only imagine such brazenly partisan behavior probably isn’t considered in our nation’s best interest.  Let’s hope that if Ortman does run against Franken that she finds some lines of attack that aren’t based in distortions and falsehoods.

Here’s the entire exchange, so you can judge for yourself:


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