Forty-six Recommendations for the N.S.A.

President Obama’s advisory committee on the N.S.A.’s practices has given him a report, released by the White House on Wednesday, that is three hundred pages long and includes forty recommendations. Some of the recommendations include specific steps to be taken or suggest changes to structures and procedures—that there be a public-interest advocate to “represent privacy and civil liberties interests before the Foreign Intelligence Surveillance Court”; that phone records be held by phone companies and not the government; that tech companies not leave vulnerabilities in their products that allow the N.S.A. slip in—but most of all it argues for a change in thinking. The thirty-page executive summary might be further condensed to a few sentences: Don’t do things just because you can. Tell people what the rules are. Remember that “security” doesn’t just mean chasing terrorists—it “refers to a quite different and equally fundamental value,” spelled out in the Fourth Amendment: “The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Stop shutting down debate by muttering about a “balance” that needs to be struck between security and freedom—they are not on opposite sides of the scale. Start thinking about privacy.

It is sobering to see how many of the recommendations include writing into law requirements that the N.S.A. not use certain of its powers unless it has a good reason to do so and does so prudently. The agency has to be told, apparently, that it can only invoke Section 215 of the Patriot Act (the so-called business-records provision) or issue national-security letters to e-mail providers asking for information about their customers if “the order is reasonable in focus, scope, and breadth”—and it has to be told that with the force of law. This appears to be an acknowledgement that, so far, the use of these provisions has not been reasonable.

The report doesn’t propose ending the N.S.A.’s programs so much as making it structurally possible to talk about them. Recommendation No. 7, for example, is that the public and Congress be informed about the “authorities” backing up various data-collection programs “to the greatest extent possible, and consistent with the need to protect classified information.” In other words, they need to be told why the N.S.A. thinks that what it’s doing is legal. One of the extraordinary things we’ve learned in the past few months is that this is all too necessary, since the government has read laws in ways that disagree not only with their public interpretations but with the English language. We don’t need to know that a particular person is being spied upon, but we need to know when it’s legal to spy.

Similarly, the report recommends that telephone and technology companies be allowed to tell their customers, in a general, periodic way, what kinds of information the government is asking for. If you want a sense of the violation, and feeling of isolation, that can occur when this is not the case, read recommendation No. 8: “Nondisclosure orders should never be issued in a manner that prevents the recipient of the order from seeking legal counsel in order to challenge the order’s legality.” (Or read the story of Lavabit.) And it reflects dissatisfaction with the transparency of the FISA court.

There is a lot folded into recommendation No. 6, which asks for “a study of the legal and policy options for assessing the distinction between metadata and other types of information.” This appears to be another way of asking whether “metadata” is a dodge, a way to claim that you are not really spying when you are. When it was first revealed, thanks to Edward Snowden, that the N.S.A. was collecting the phone records of hundreds of millions of Americans, there was a rush to assure everyone that this was just metadata—nothing private. (The Guardian has put together a useful guide matching recommendations to Snowden revelations.) But there is a great deal to be learned from what the government seems to classify as metadata; we have yet to untangle everything it does with things like e-mail subject lines and cell-phone-site locations. The panel asks for a transition away from bulk collection and data mining as the default practice of our spies.

Another word that it implicitly asks for a reconsideration of is “foreign.” Often, discussions of N.S.A. excesses concern only Americans; what it is doing with foreigners is treated as presumptively reasonable. The panel advises looking at the risks of this approach—to alliances and businesses, for example—and putting in place procedures that put the brakes on certain kinds of spying abroad.

But the corollary is that the report will only be as good as the discussion that follows makes it. This panel itself only exists because Snowden, an N.S.A. contractor, leaked a trove of documents that include much that should never have been secret. There were doubts that the panel would do much, because many of its members had government connections. (One of them, Mike Morrell, the former deputy director of the C.I.A., said on Wednesday, “We are not in any way recommending the disarming of the intelligence community.”) But, as with Judge Richard Leon, of the D.C. District Court, who said in a decision on Monday that the bulk collection of telephone metadata was likely unconstitutional, looking closely at the N.S.A.’s activities seems to be a disconcerting experience, even for those who are deeply embedded in the structures the agency supposedly defends.

That ruling may have sped up the release of this report, which we were originally not going to see until January, when Obama decided which parts he liked. He may still reject all of it (he has already reportedly turned down one idea, about separating Cyber Command from the N.S.A.), but he can’t ignore it or tell people to look away. Snowden is present there, and in another way, too: some of recommendations are for ways that the N.S.A. be more careful about keeping its own secrets, while remembering that we each have our own. The report asks for fewer big changes than some had hoped; with luck and public pressure, it may do more more than its own authors intended.

Original Article
Source: newyorker.com/
Author: Amy Davidson