NSA Slapped By Courts, IT Firms And Obama’s Advisors

wayne Rash

The US government will ignore much that Obama’s advisors ask for, says Wayne Rash, but some things will change

A hand-picked panel of Presidential advisors has criticised the National Security Agency this week – and  IT vendors and the US legal system have also delivered some unwelcome gifts to the NSA in the week before Christmas.

The Review Group on Intelligence and Communications Technologies was chartered to study the activities of the NSA and other intelligence agencies; its 300-page report contains a list of 46 recommendations to change the structure and operations of the NSA and several related agencies.

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While all of the recommendations are significant, the ones of greatest importance include changes to the Foreign Intelligence Surveillance Court including the creation of a Public Interest Advocate to be created by Congress to represent the interests of privacy and civil liberties in proceedings before the FISC.

The panel also called for limits on the court’s power to compel private organisations to produce information, for increased transparency in the courts operations and new procedures for the selection of FISC judges.

Some of the moves were sweeping, including a call to end the storage of metadata by the agency, a call to split the NSA away from the US Cyber Command and allowing the director of the NSA to be a civilian. In addition, the panel called for better protection of information to prevent thefts and leaks of classified information like those carried out by former government contract employee Edward Snowden.

Tech execs raise heck

The panel’s report is a major blow to the agency that once seemed sacrosanct. It’s only the latest of several headaches that the NSA has endured in rapid succession. The previous day, a group of technology company executives met with President Barack Obama and by all accounts raised hell about government snooping on private corporate networks and U.S. citizens’ communications and data. The executives said that the government surveillance was making it difficult to do business in an increasingly connected world.

Before that, the US District Court for Columbia ruled that the collection of phone metadata by the NSA is an unconstitutional violation of the Fourth Amendment to the US Constitution.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systemic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it with prior judicial approval,” wrote Judge Richard Leon of the US District Court for the District of Columbia.

The judge noted in his decision that the plaintiffs in the case would suffer irreparable harm without relief in their suit against the Government. He also said that they have a strong likelihood of success on the merits of their Fourth Amendment claim. However the judge issued a temporary stay of his injunction citing the national security implications.

NSA unconsitutional?

As you would expect, the Obama administration is planning to appeal the judge’s order, thus ensuring that it will ultimately end up in the Supreme Court, which is probably where it belongs. What particularly concerns a number of observers, however, are remarks by Judge Leon that the NSA has been prohibited in the past from conducting some of the types of surveillance that it’s now taking fire for having done, but that apparently the agency has simply ignored those orders.

This is clearly reflected in Recommendation 11 of the Review Group which strongly urged that programs carried out by the NSA be kept as transparent as possible. “We recommend that the decision to keep secret from the American people programs of the magnitude of the bulk telephony meta-data program should be made only after careful deliberation at high levels of government and only with due consideration of and respect for the strong presumption of transparency that is central to democratic governance,” the group wrote in its report.

While some of the group’s recommendations aren’t going to be enacted by the White House, notably the one that recommends separating the NSA Director and the US Cyber Commend, it’s highly likely that at least some of the recommendations by the group will be put into place.

It’s important to remember that the recommendations are intended to bring balance and transparency to the agency in terms of the information gathering activities when directed at US citizens. The idea is to make sure that the advocacy and protections envisioned in the Constitution are maintained, and that the privacy and freedom that intended to be part of every American’s right as a citizen isn’t trampled on in the pursuit of bad guys.

But the group as well as the US District Court acknowledge the important role of the intelligence community in keeping American citizens safe from terrorist attacks. They just want all of that to take place under a constitutional framework and in full compliance with existing law.

The world has changed

What’s happened, as Judge Leon notes in his decision, is that the world has changed since the days when the Supreme Court ruled that phone metadata was not part of a person’s expectation of privacy.

Now that phones report your location, who you communicate with using a wide range of communications media, what websites you browse and even who sends you email, the need for protection has changed. I don’t think there’s much doubt that the Supreme Court will hear the appeals or that Congress will fail to pay attention. But it needs to be done in a way that preserves the vital functions of the intelligence community as well.

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Originally published on eWeek.

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Author: Wayne Rash
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