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:
- 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.
- 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.
- 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:
- 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.
- 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?
- 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.