The NSA should mind its own business, at least when it comes to non-U.S. persons. Photo: (Alex Wong/Getty Images)
The presidentially appointed panel to assess the scope of intelligence and communications technologies wants to change the way the government stores and collects intelligence. Will they fly with the president? Between now and January, when Obama is expected to announce the reforms he endorses, he'll face plenty of pressure to dull the edges of the recommendations, particularly those that implicate the way the National Security Agency gathers foreign intelligence information. Based on a close reading, here's what's likely to draw the president's eye.
1. Change the definition of what the NSA legitimately collects from information that has bearing on foreign intelligence, or which has foreign intelligence value, to information that protects the national security interests of Americans and allies or prevents a foreign entity from gathering such information about the United States. The NSA is not going to like this change because they'll find it limiting. "Foreign intelligence" encompasses everything from political gossip among allies to the potential identity of spies targeting the U.S. The revised definition would not include the former, and if it did, that would mean that the NSA and the White House essentially chose to ignore the spirit of the recommendation, which clearly wants to limit the scope and ambit of the NSA's requirements.
2. Recognize that legitimacy and credibility are as important to intelligence collection as legal authority and formal oversight. The panel wants to prevent the NSA from storing, for future intelligence use, the telephone records collected from American service providers, and instead, would keep that data in the hands of the providers, presumably allowing the NSA to create a mechanism to instantly search them, simultaneously, if a legitimate national security purpose was served. So long as the NSA could create the technology, the process would probably look the same to analysts. But, importantly, it would further the following principle: As a general rule, the government should be allowed to store mass-collected data of any kind for future intelligence purposes. It adds: "Any program involving government collection or storage of such data be narrowly tailored to serve an important government interest." Other reforms proposed under this umbrella include the creation of advocates for Foreign Intelligence Surveillance Act victims, a chief privacy officer inside the government, more stringent rules for both the issuing of orders and national security letters, and more transparency required of both the issuer (the government) and the issuee (private companies).
3. The controlling metaphor for privacy should not involve balance; it should involve risk. One hears the voice of panel member Cass Sunstein in the following sentence: "Before they are undertaken surveillance decisions should depend (to the extent feasible) on a careful assessment of the anticipated consequences, including the full range of relevant risks. Such decisions should also be subject to continuing scrutiny, including retrospective analysis, to ensure that any errors are collected."
4. The surveillance of non-U.S. persons should be further restricted, and their inherent rights to privacy should be considered. The NSA will very much find this distasteful, since their bread has been buttered by the unfettered collection of massive amounts of undigested information about foreigners in order to discern useful patterns. Specifically, future collection [italics are theirs] "must be directed exclusively at protecting national security interests of the United States and their allies," cannot target anyone solely based on their religion or political views, and cannot disseminate to foreign countries information unless it directly bears upon our or their national security interests.
5. The Foreign Intelligence Surveillance Court would be required to ensure that "tangible things" obtained for intelligence purposes are consistent with an approach that is "reasonable in focus, scope, and breadth". Now, the government need only show that the request for information is reasonable. Now it would have to tailor the request to ensure that the items it wants are reasonable, something the court would have to certify before granting the order.
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