If you’re interested in whether or not the NSA can collect your phone calls, this week’s newsletter is for you. And … it’s got some good news and bad news.
First, the good news. The House passed, in pretty overwhelming fashion, a bill known as the USA Freedom Act. Supporters of the bill, including a great many privacy advocates and news outlets, have hailed the bill as putting an end to the NSA’s bulk collection of phone records. In addition, they point out that the bill makes an important move in requiring the presence of a privacy advocate when the secret FISA court reviews NSA requests to gather data on specific people without their knowledge. These are good things.
The bad news, at least if you have as little trust in the NSA and its advocates in Congress as I do, there is a very good chance that the records of millions of innocent Americans will remain subject to the federal dragnet. The reasons for that are pretty technical and certainly subject to interpretation, but if past behavior is any indication of what is likely to happen, it’s easy enough to explain.
In short, the NSA originally based its authority to collect data on most if not all American calls (and mass amounts of email and web traffic as well) on statutory language in the Patriot Act that just about any reasonable layperson would say does NOT give them that authority. Indeed, just in the last couple weeks, a federal court issued a ruling saying that based on the statutory language in question, the NSA did not in fact have that authority. When I look at it, I would tend to agree. Yet the NSA has been doing it anyway for years.
So while this new language passed by the House this week does not permit the NSA to store all of that mass data in-house, it does permit them to continue querying it. Indeed, while they will no longer have the data on their own servers, by some interpretations, the restrictions on what can be queried have actually been broadened.
In my experience, it’s important to maintain a healthy sense of skepticism. For instance, while the NSA itself says it can’t monitor electronic communications between Americans on U.S. soil, it does not take the same view of communications that occur overseas. This too gets a bit squirrelly because quite a bit of our web traffic, including email can end up getting bounced across servers overseas before reaching its final destination. Indeed it’s quite common for that to happen. Electronic data moves at the speed of light, so it’s not nearly as cumbersome as shipping a letter through London to get it from Tampa to Tacoma. That’s apparently just the way the internet works. So how restrictive a view do the NSA’s lawyers take of these electronic quirks? Is that domestic communication or foreign? Well… it did go overseas, didn’t it?
You could be forgiven for wondering how far they are likely to push the new statutory language about what they can query. You could also be forgiven for wondering how open and honest are they going to be with your elected representatives in Congress about the actions they are taking based on the ambiguous language Congress passes.
Based on my own personal experience, not very. You may recall a hearing a couple years back in which Senator Ron Wyden, a member of the Senate Intelligence Committee asked Director of National Intelligence if the NSA was collecting, “any type of data at all on millions or hundreds of millions of Americans.”
Mr. Clapper’s answer? “No. Not wittingly.”
When the Snowden leak came out and uproar ensued, many members of Congress, including myself wanted to know why we had not been briefed that these programs were in place. The NSA sort of shrugged and said that they’d told Congress repeatedly about these programs. Only it was through oblique references in various classified documents that we were only permitted to read in a secure vault without our own staff members present. We couldn’t take a copy with us, obviously. And we couldn’t bring in our own attorneys, experts, etc. to provide unbiased counsel on what we were looking at. Frankly, even if we could, you’d have to know what you’re looking for. And even if you’d found it, you’d have to take them at their word about what X, Y, or Z program name actually did. There’s certainly no bold text or highlighted section that says, “here’s where we make very questionable assumptions about what Congress has given us permission to do”.
With the benefit of hindsight, when this questionable activity comes to light, it’s possible to go back and see the specific verbiage that Congress passed and how that language was stretched to permit activity that most members would not have felt comfortable with. In the rushed days leading up to an authorization vote, particularly in the days after a terrorist attach, it can be tricky to anticipate how language might be used. What looks like very straightforward language restricting the NSA’s activities in a reform bill can actually be a very cleverly worded restatement of current law (which the NSA has based their activities on in the first place). The point is, it pays to read carefully and with a very skeptical eye.
So, yes, I was a little worried when I saw so many of my colleagues congratulating themselves for having “put an end” to the NSA’s mass collection of Americans’ data. I think it’s likely those self-congratulations are a little premature. The fact of the matter is that the NSA has been debating for some time whether it’s cost-effective to collect and store all of that data in-house. What they have NOT been debating, and in fact have been fiercely arguing for, is that they need to have access to it. For my money, it doesn’t much matter where the physical servers are that hold the data. What matters is can the federal government continue to access, without a specific warrant, the records of millions of innocent Americans – who you talk to, how often you talk, for how long you talk, and so forth. And that’s to say nothing of web traffic.
If there is one immutable truth, the executive branch will always push the absolute outer limits of what the law authorizes. If you pass a law saying the government may not set foot on my lawn, then they will quickly decide they are gymnasts who can walk on their hands. If you say no part of the government may touch my lawn, then as sure as the sun rises in the east, they will say they can suspend themselves from a tree branch next door just because they aren’t physically touching the lawn. So if you feel as strongly as I do that the government has no right to invade your lawn without a warrant, then you better be very careful about how you word permissive language pertaining to vast lawn surveillance programs.
I just don’t trust them. I don’t trust their lawyers. And I don’t trust the people in Congress who have backed the NSA’s activities – and who, not for nothing, are the same people writing the reform bills. When it comes down to trust without an ability to verify, that’s not something I can endorse.
Knowing full well that the deadline for reauthorizing these programs was June 1, I don’t personally believe they needed to wait until the last minute to show us their new language – wholesome as it may seem. I don’t think the bill needed to be rushed to the floor just days before the deadline. I don’t think an hour of debate was enough to consider all of the possibilities and concerns. This bill not only made material changes to the NSA’s programs, it also extended for several more years some other very controversial authorities under the original PATRIOT Act. None of it was open to amendment. If any of us outside of the room had wanted to change the language on the floor, we couldn’t. For something this big and consequential, that’s not right.
As far as the NSA language is concerned, I can tell you that it does make some meaningful improvements. But what I cannot tell you with certainty is that all of the stories you’re reading saying “it’s over” are even close to correct. It’s sad to say, but my gut tells me it’s not over. And for all of these reasons and more, I had to vote no.
Congressman Rich Nugent represents The Villages in Congress.
