Computers, Privacy & the Constitution

The Inadequacy of the Recent Congressional Review of the Patriot Act

Recently, facing the expiration of several sections of the Patriot Act, Congress elected to reign in the power of the NSA and put an end to the mass collection of Americans phone call data – a practice that was recently ruled to be illegal by a federal appeals court. This represents the first serious abrogation of any of the NSA’s surveillance powers and is in some ways unprecedented. However, while this represents a step in the right direction, we should be wary that this move amounts to no more than a political ploy designed to satiate the public and political demand for NSA reform that has recently emerged. In some ways, this pull back on the scope of the NSA’s powers can be seen as a red herring meant to avert the public’s gaze from the more substantive issue: a pervasive lack of oversight at the NSA.

Why did you not cite Judge Lynch's decision? Is the summary of a judicial decision provided by the website of a radio program supposed to be what we read and think about in law school?

The climate that this occurred in was one where we have seen Snowden’s revelations, WikiLeaks? , a court ruling that the NSA’s mass phone call data collection was illegal, Sony being hacked by North Korea, and allegations of widespread Chinese hacking, including the most recent severe breach at the Office of Personnel Management. Digital privacy and security is on the forefront now more than ever, and with the expiration of the Patriot act imminent, Congress’s hand was forced to take some action that appeared as if it scaled back the NSA’s power to oversee domestic conduct. However, this was tempered by the desire not to encumber the offensive arm of the United States during ongoing digital guerrilla warfare.

This passage, which I take it is supposed to tell us something about the political background to legislation, is a farrago of half-accurate statements. Whatever it tells us, accuracy would be better. You cannot prove who was responsible for taking data from Sony, and no one else has, for example. What are these more-or-less facts supposed to tell us?

Unfortunately, these two factors do not pull with equal force, and Congress acted in largely a symbolic manner by disallowing an already illegal NSA practice as its offering of change. This step should not be seen as a commitment to the protection of our Fourth Amendment privacy rights, as it does not even go so far as to address the procedures that allowed the phone data collection to go on for years without substantive review by Congress, the courts, or impartial NSA supervision. In some ways, this is an odd result, considering that Congress almost unanimously declared that the NSA’s interpretation of the Patriot Act was not what they intended, but since they never knew about the practice, they had no opportunity to weigh in on its impropriety during its implementation.

The current, unchanged process is one that operates counter to what is generally accepted in our legal system. The NSA, an agency that has every interest in gathering information no matter the means, is responsible for interpreting the laws that Congress passes as to the scope of their authority. Because of the top secret status of the practices being implemented, as well as their clandestine nature, there is no opportunity for another party to review these practices, or even detect their existence. The only possible review comes from the secret NSA security courts – which arguably share the interests of the NSA – and which are even kept in the dark as to some practices. The result of this structure is that private citizens and government regulators alike are foreclosed from challenging questionable practices in the courts until it is too late. Coupled with a lack of Congressional oversight, this is a system that invites abridgements of Constitutional rights in a way that is not seen anywhere else in our current legal landscape.

While some organizations and people are suggesting that this act represents Congress responding to a popular demand not to be spied on, it can alternatively be viewed as a complicit acceptance of the array of practices that Congress chose to renew. In fact, this is a more reasonable interpretation given that a traditionally lethargic Congress reinstated the status quo (minus one practice) in the face of the expiration of several portions of the Patriot Act. Congress provided a public advocate for the Foreign Intelligence Surveillance Court, however, the renewed Act “leaves untouched formerly secret programs the NSA says are authorized under section 702 of the FISA Amendments Act, and that while ostensibly targeted at foreigners nonetheless collect vast amounts of American communications.”

Going forward, it is unclear whether the recent Congressional pullback on the NSA’s powers was a legitimate expression of concern for Americans Fourth Amendment rights, or was simply a red herring.

What does a sentence beginning with the illiteracy "Going forward" mean when it's about the past?

Some causes for hope include new proposals for privacy protections, such as a proposal to require warrants for aerial surveillance by the FBI, the House’s passage of a bill designed to “prevent the NSA from spying on American citizens whose data was incidentally collected during foreign dragnets,” and a strengthened resolve by surveillance reformers in Congress to continue to make changes to the NSA’s methods of operation. These initiatives face varying levels of resistance, but it appears that many members of Congress remain obstinate and unwilling to pursue any meaningful change, particularly with no deadlines bearing down upon them, and following a piece of legislation they can point to as a sign of progress. It is important, now more than ever, that Congress continues to push for reform and does not rest on its laurels following a symbolic correction of one wrong among many.

This is not political analysis. This is not legal analysis. I think it's blog commentary. But what is the idea being communicated?

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r3 - 26 Jul 2015 - 18:42:38 - EbenMoglen
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