NSA

The NSA Recommendations: Preventing Turnkey Totalitarianism

The White House panel's recommendations for NSA reform are a start, but more needs to be done-and soon.

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This week President Barack Obama's handpicked review board recommended 46 significant changes to the way the National Security Agency (NSA) and other federal agencies spy on Americans. Many of the panel's proposals would help stop the slide toward the "turnkey totalitarian state," to borrow a phrase from the NSA whistleblower William Binney. But they won't be enough.

Five of the panel's recommendations, or groups of recommendations, are especially important. The first holds that "the government should not be permitted to collect and store mass, undigested, non-public personal information about U.S. persons for the purpose of enabling future queries and data-mining for foreign intelligence purposes." Instead, records of when, from where, to whom, and for how long Americans talk on their phones would be collected and stored by telecommunications companies or by a private consortium. The NSA and other agencies would have to seek separate judicial orders to search those databases instead of authorizing such searches themselves as they do now. Records would be held for just two years. (Some telecom companies currently hold phone records for as long as 10 years. The NSA retains them for five.)

This proposal does not do nearly enough to protect Americans' privacy. As attorney Kurt Opsahl of the Electronic Frontier Foundation points out, "Mass surveillance is still heinous, even if private company servers are holding the data instead of government data centers." Fortunately, two bills have been introduced in Congress, the USA FREEDOM Act and the Intelligence Oversight and Surveillance Reform Act, that would ban the feds from the bulk collection of Americans' phone records altogether.

Besides being unconstitutional, the NSA's dragnet collection of records was, in the review panel's words, "not essential to preventing attacks" anywhere. Americans gave up their liberty but gained no security.

A second set of recommendations involves national security letters. With such a letter, the Federal Bureau of Investigation can order the party holding an American's private communications or financial records to give them to the government; it can also impose a gag order prohibiting that party from informing anyone that the records have been handed over. Right now, this can be done without any prior court oversight.

Under the panel's proposal, the government could not issue a national security letter unless it first shows a court that it has "reasonable grounds to believe that the particular information sought is relevant to an authorized investigation" involving "international terrorism or clandestine intelligence activities." Gag orders would be issued only "upon a judicial finding that there are reasonable grounds to believe that disclosure would significantly threaten the national security, interfere with an ongoing investigation, endanger the life or physical safety of any person, impair diplomatic relations, or put at risk some other similarly weighty government or foreign intelligence interest." Instead of being essentially perpetual, as they are now, those non-disclosure orders would remain in effect for no longer than 180 days, unless extended by judicial re-approval. Furthermore, the recipients of gag orders would be able to challenge them in court. And federal agencies would have to disclose detailed data to the American people about how much information they are collecting in the name of national security.

All of this would be an improvement on the status quo. But the "reasonable grounds" standard is not stringent enough. Government agencies should be required to obtain a warrant based on probable cause before being permitted to rifle through Americans' private information. Defenders of national security letters claim the lesser standard is needed to "appropriately and efficiently investigate threats to the national security…without alerting the targets that it is doing so." Critics counter, compellingly, that field agents have issued tens of thousands of these letters on the mere assertion that the data they are demanding is "relevant" to an investigation, even if the person whose records are being taken is not suspected of any wrongdoing.

A third group of recommendations would reorganize how the NSA is governed. The panel proposes that the agency's director should be confirmed by the Senate and that civilians should be eligible to hold the position. The panel also suggested that the NSA director should not also head the U.S. Cyber Command.

Obama has already rejected these ideas. That's too bad, because they would be significant improvements. "Even though the overwhelming majority of intelligence activities, personnel, and funding are military, the intelligence process remains an inherently political activity and therefore needs civilian input," Pace University law professor Mark Shulman explained in a 2012 paper. "The nation does not have meaningful civilian control over the military intelligence apparatus," he added, "if its civilian leaders are retired generals." As for Cyber Command, it deploys offensive capabilities, whereas the NSA's intelligence gathering is supposed to be primarily defensive.

The panel's fourth major recommendation is for Congress to create the position of public interest advocate, whose job would be to represent privacy and civil liberties interests in proceedings before the Foreign Intelligence Surveillance Court. The advocate could be housed in a strengthened Civil Liberties and Privacy Protection Board, which would be an authorized recipient for whistleblower complaints related to privacy and civil liberties. (Be that as it may, nearly a quarter of the review panel's recommendations were aimed at making sure that there will be no future Edward Snowdens.)

The fifth salient recommendation is that the NSA be forbidden to engineer vulnerabilities into the encryption algorithms that guard global commerce and that the agency be precluded from demanding changes in any product to ease the clandestine collection of information. Such activities have already undermined trust in the security of telecommunications and data storage around the globe.

At the Cato Institute's conference on NSA surveillance in October, Harvard Berkman Center fellow Bruce Schneier noted that a "secure Internet is in everyone's interests. We are all better off if no one can do this kind of bulk surveillance. Fundamentally, security is more important than surveillance." At the same conference, Matt Blaze, an Internet security professor at the University of Pennsylvania, observed that maintaining vulnerabilities in computer code doesn't just make it easier for the NSA to spy; it makes it easier for the Chinese, Russians, and Iranians to spy, and for Internet criminals to steal data and cause other havoc.

If there is another significant terrorist attack, the report's authors warn, "many Americans, in the fear and heat of the moment, might support new restrictions on civil liberties and privacy." They add, "The powerful existing and potential capabilities of our intelligence and law enforcement agencies might be unleashed without adequate controls. Once unleashed, it could be difficult to roll back these sacrifices of freedom." Turnkey totalitarianism could become a reality. The time to stop that possibility is now.

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  1. Who cares if they’re not enough? They’re going to be ignored anyway.

    1. s: Perhaps I am naive, but I think that the pretty strong critiques of NSA spying embodied Judge Leon’s decision and the report by White House’s own panel may give sufficient impetus for reform legislation in Congress.

      1. “Congress has passed a law. Let them enforce it”.

        ~Eric Holder, paraphrasing a quote mis-attributed to Andrew Jackson.

        1. Hm… I didn’t think it was a misattribution. Nobody can confirm he actually said it and it may just be a (bad) paraphrase of something else he wrote/said.

      2. I would not call you naive Ron.

        Perhaps some of us have become overly cynical by seeing white house panels sensible suggestions ignored in the past, and by seeing the one-way ratchet of state tyranny for too long.

        “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

        In spite of the many parsings of that language, of the nuances found lurking between the words and lines, in spite of the many exceptions found written in invisible ink, any 10 y/o can read that and say without hesitation what it means.

        What this federal government is doing is criminal and all the people engaged in it are conspirators. There is no use in calling it other than what it is. To expect these criminals to back off or to be held accountable is overly optimistic.

        1. Government is the people who are supposed to stop people who engage in criminal activity.

          Who stops government when they are the people engaging in criminal activity?

          1. *Goes out to shed and rummages around*

            “Ok, there is the pitchfork, now what did I do with that rope?”

        2. “any 10 y/o can read that and say without hesitation what it means.”

          As someone who agrees with Ron Bailey about the surveillance state being the greatest long term threat to overall liberty I have to disagree here. The problem here is the 4th does not say ‘no searches’ or even ‘no searches without warrants,’ it says ‘no unreasonable searches.’ We of course immediately see what the NSA is doing as unreasonable, but that is because libertarians have a higher-than-the-norm wariness of the state and commitment to individual liberties. People lacking that, which includes most judges, may or may not see it so obviously. What we need is some real statutory supplementation of the principles the 4th puts forward.

          1. The problem here is the 4th does not say ‘no searches’ or even ‘no searches without warrants,’ it says ‘no unreasonable searches.’

            If the government is doing the search then it must be reasonable.

            /average judge

      3. So what if Congress rewrites the legislation. The people at the NSA are going to do what they want. Who’s going to stop them?

  2. if the White House pays any attention to these recos, it will be for the sole purpose of diverting attention from the cluster of O-care.

    1. w: I’d make that trade. Much more worried about the liberty implications in the growth of the national security surveillance state. There’s a good chance that O-care will eventually collapse of its own regulatory weight.

      1. I truly hope you are right about that.

  3. Jugears is giving his end of the year address now. He just got through with his speal on how he has reviewed the panel’s recommendations and he will review the NSA’s activity and structure so that we can strike the right balance…..a balance he claimed long ago we were strictly adhering to.

    Translation: Fuck you.

    Sorry Ron. Overly optimistic.

    1. He basically said that the NSA didn’t do anything wrong. It’s just a matter of perception. So yeah. That’s a big fuck you alright.

    2. ^^THIS

  4. “The fifth salient recommendation is that the NSA be forbidden to engineer vulnerabilities into the encryption algorithms that guard global commerce and that the agency be precluded from demanding changes in any product to ease the clandestine collection of information.”
    —-
    This is ESPECIALLY heinous. Encryption literally protects everything we do these days. Does anybody actually think that forcing engineering backdoors into encryption software banks, e-commerce sites, e-mail services, etc., use for EVERYTHING will not be discovered and taken advantage of by any other party, ever (assuming the NSA never abuses its privileges)? I mean, seriously, WTF have they been thinking?

  5. You have all seen the Obama as Big Brother poster but it’s worth looking up.

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