"We are overseen by everybody," NSA Chief Keith Alexander lamented last year, reiterating, as he likes to do, that the agency's surveillance is subservient to all three branches of government. Congress passes the laws, the judiciary evaluates them, and the executive branch implements them.
Except that Congress is generally kept in the dark on details. And except that courts have been stymied in assessing the constitutionality of the behavior behavior. Both thanks to the stinginess of Barack Obama's executive branch that runs the show. Now, thanks to Snowden, that's shifting.
Last week, we outlined the new, relatively modest push for reform in the legislative branch. Much of that reform centers on the role of the Foreign Intelligence Surveillance Act Court, which is singularly responsible for assessing and approving the government's requests for authorization to conduct surveillance activity. The government presents its case, no counterargument is heard, and almost always the request is approved.
Monday morning, Senator Richard Blumenthal of Connecticut made his case for reform public in an opinion piece for Politico. Blumenthal focuses on legislative reforms to the role of the FISA Court and its nearly universal acquiescence. "This has to stop," he writes.
The FISA court serves a critical purpose in our national security apparatus, ensuring timely consideration of surveillance requests when seconds matter most. But the court in its current form—unaccountable, secretive, one-sided—is broken.
The FISA Court was established by Congress specifically to play that oversight role, but its secrecy means that its nearly impossible to evaluate its actual oversight. And it makes the reform efforts proposed so far, including the one supported by Blumenthal, incomplete. The Electronic Frontier Foundation detailed the challenges in a blog post Monday. "Unfortunately," EFF writes, "legislators are trying to edit the statutory text before a thorough understanding of how the government is using key definitions in the bill or how the FISA Court is interpreting the statute." Such as how the court defines "relevant."
Much less how the court generally interprets the Constitution. It has clearly determined that the two laws used to authorize surveillance—the Patriot Act and the expanded Foreign Intelligence Surveillance Act—are constitutional in the application the court itself allows. (Although the court has ruled that the surveillance violated the Constitution on at least one occasion.)
Over the weekend, writing for the Wall Street Journal, constitutional law professor Randy Barnett argues that the surveillance is a fundamental violation of the Fourth Amendment. He isolates the broad collection of phone metadata under the Patriot Act.
By banning unreasonable "seizures" of a person's "papers," the Fourth Amendment clearly protects what we today call "informational privacy." Rather than seizing the private papers of individual citizens, the NSA and CFPB programs instead seize the records of the private communications companies with which citizens do business under contractual "terms of service." These contracts do not authorize data-sharing with the government. Indeed, these private companies have insisted that they be compelled by statute and warrant to produce their records so as not to be accused of breaching their contracts and willingly betraying their customers' trust.
The FISA Court disagrees with Barnett, of course, and it's apparently the highest court that has considered the broader question of constitutionality.
Well, except the Supreme Court. In an article Monday, The New York Times notes how that high court ruled in February against a challenge to the NSA's then-still-murky data collection. That decision, which was five-to-four along largely political lines, was predicated on the government's attorney's insistence that the surveillance included specific protections for the surveilled. In fact, the government's main argument—that the people bringing the suit against the office of the director of national intelligence lacked standing to do so—was predicated on the fact that the plaintiffs didn't know if they were among those being surveilled. Those with standing, the solicitor general argued, would be able to learn that the tool being used for the surveillance was FISA. They could then challenge the law.
Except that this isn't how it works in practice, The Times points out. Several instances in which FISA-gathered intelligence was used in prosecutions was hidden from the defendants in those cases. Meaning that Solicitor General Donald Verrilli provided the Supreme Court with incorrect information—and that information was used to reject a push to halt the NSA's surveillance.
Shortly after The Guardian began detailing the leaked documents from Edward Snowden, we analyzed how each branch of the government might be able to curtail the surveillance. We walked through each branch of government, ending up in the same place: changes to the system can be done most easily and immediately by the president and his national security team. What's changed since is that much more of the tactical information that the executive branch keeps in its back pocket has been revealed by Edward Snowden and the press. Meaning that for the first time, that oppressive oversight that prompted the NSA's crocodile tears last year might actually come into being.