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Reining in the NSA

Mitch McConnell.jpg
Andrew Harnik/Associated Press
Senate Majority Leader Mitch McConnell, Washington, DC, June 1, 2015

Sunsets require sunshine. That may be the most enduring lesson from the Senate’s passage on Tuesday of the USA Freedom Act, which will bring an end to the National Security Agency’s bulk collection of Americans’ phone records.

If Edward Snowden had not revealed the NSA’s sweeping surveillance of Americans, Congress would have simply renewed Section 215, the USA Patriot Act provision that the NSA relied on before its expiration on June 1—as Congress had done on seven previous occasions since 2001. But Snowden’s leaking of top secret NSA documents let Americans in on the previously secret fact that their government was collecting all of their phone data, without regard to whether they had ever engaged in any terrorist, criminal, or even suspicious activity. As a result, Congress has now imposed restrictions on national security surveillance for the first time since the September 11 attacks.

Some have seen the passage of the USA Freedom Act as reflecting a major shift in Americans’ attitudes toward liberty and security. That is possible, but only time, and another terrorist attack, will tell. What is certain when it comes to surveillance is the critical importance of both sunsets, requiring a law to be reauthorized at regular intervals, and sunshine, or transparency about how the law is being used in practice. Without the pending expiration of Section 215, Snowden’s revelations would not have led to reform; Senate Majority leader Mitch McConnell’s opposition to reforming the law would have been more than sufficient to block any change.

If we are to have meaningful democratic deliberation about new government surveillance powers—and technological advances make it certain that many such new methods will indeed be devised—the twin elements of sunset and sunshine need to be built into all surveillance laws that govern them.

The requirement that a law will expire, or sunset, after a given period of time unless it is reauthorized ensures that Congress will revisit an issue. In US law, the concept can be traced as far back as Thomas Jefferson, who thought they would be a good idea for all laws. They first caught on as a way to promote accountable government in the 1970s, in the wake of Watergate. Sunsets are especially appropriate for surveillance powers, which are especially subject to abuse. Their effectiveness lies in the fact that they force the law’s supporters to show that it is working rather than putting the burden on reformers to build support for an alternative. Ordinarily, if Congress cannot agree on reform, the law remains unchanged, there for the executive to continue to exploit. With a sunset in place, by contrast, if Congress cannot agree, the statutory authority ends. This gives reformers a significant advantage, and puts pressure on the executive branch to show that the power has not been mis-used. As Senator Rand Paul has shown in his heated opposition to Section 215, even a single senator can make it very difficult for the Senate to act. If, as was the case here, the consequence of legislative inaction is that a government surveillance program ends, those who seek reform have a very powerful tool to encourage others to agree.

But sunsets don’t work without sunshine, as the previous seven renewals of Section 215 make clear. In fact, when the ACLU challenged the legality of the NSA phone data program in 2013, the government argued in court that Congress’s repeated reauthorizations meant that it approved of the NSA’s program as lawful. The reality, as the Second Circuit noted, was that very few members of Congress even understood what the NSA was doing. More important, and contrary to basic principles of democratic government, no one in the general public had any idea. As the Second Circuit wrote, “Congress cannot reasonably be said to have ratified a program of which many members of Congress—and all members of the public—were not aware.”

Moreover, as long as the program remained secret, the NSA never had to demonstrate, during prior debates on extending Section 215, that the program was actually working to stop terrorists. Once the program became public, the Privacy and Civil Liberties Oversight Board pressed the NSA on just that question, and reported that the program has never stopped a terrorist attack or brought an actual terrorist to justice. The most the NSA could point to was a San Diego man identified as having donated several thousand dollars to al-Shabaab in Somalia.

Congress’s almost reflexive support for Section 215 only changed with Snowden’s leaks, which in turn prompted every branch of government to alter its approach toward the NSA’s phone data collection. President Obama, who had previously adopted the program wholesale from his predecessor, imposed a number of restraints unilaterally. A federal district court ruled that the NSA’s bulk collection was likely unconstitutional, and a federal court of appeals more recently ruled that the program was never authorized by Section 215 in the first place. And now Congress has ended bulk collection altogether, by enacting the USA Freedom Act.

What does this mean for surveillance laws in the future? At a minimum, Congress should continue to impose sunsets whenever it authorizes new surveillance powers. But it must do more than that. If the sunsets are to work as designed, Congress must also mandate transparency about what these laws are actually doing. We cannot, and should not, rely on future Edward Snowdens to fill us in on what the government is doing in our name.

The USA Freedom Act makes important steps in that direction. It requires declassification and summary of orders issued by the secret Foreign Intelligence Surveillance Court, where possible. Until recently, that court, which meets in secret with the government, published almost none of its decisions. Thus, when the FISC repeatedly authorized the NSA to collect all our phone records, none of us knew it had done so. In fact, the very first document Snowden leaked was a FISC order directing Verizon to turn over all of its customers’ phone data. Had we known at the outset that the court was allowing such dragnet collection, the program would not have been extended seven times.

The USA Freedom Act also compels the government to report on the number of times it uses certain surveillance powers annually. But Congress unfortunately dropped a requirement from last year’s version of the act, which would have required the government to tell us how many Americans it collects information about under each authority—perhaps the most politically salient fact of all. It’s a fair bet that if the NSA had reported that it was collecting records on several hundred million Americans, bulk collection would have ended long ago.

Transparency and sunsets are critical because, despite the important victory on Section 215, much of what the NSA does continues to be unchanged and shrouded in secrecy. The USA Freedom Act says nothing, for example, about how the NSA should conduct itself overseas. We have learned, again courtesy of Snowden, that the NSA has been voracious in its surveillance of innocent individuals outside the United States. For example, it has recorded the contents of every single phone call in certain foreign countries. It has hacked into Internet trunk lines to sweep up billions of messages. It has collected location data, address books, and texts from untold numbers of innocent foreign citizens. And notwithstanding Snowden’s revelations, the full scope of what the agency is empowered to do and is doing remains secret.

Much of this surveillance does not affect Americans in the same direct way that the Section 215 program did. But foreign nationals have privacy rights, too. Their rights are recognized in legal treaties that we have signed, including the International Covenant on Civil and Political Rights. Many foreign citizens are understandably upset with the NSA’s dragnet surveillance, just as we’d be upset to learn that the Chinese were recording all of the contents of our phone calls. Indeed, Silicon Valley companies report that they are feeling the effects, as foreign customers turn away from American providers for fear that they will be more vulnerable to US surveillance if they use US services. And in an age when international communication has become commonplace, much of this surveillance does affect Americans, if they happen to be on one end of a monitored communication. (Or if the government cannot initially ascertain whether a particular electronic communication involves an American citizen, as is frequently the case with Internet communications.)

The age of digital surveillance has arrived. Congress is only just beginning to catch on, and catch up. Most Americans have been kept in the dark. Many of the government’s surveillance tools may be necessary, and can be deployed in ways that respect privacy while also protecting us from criminals and terrorists. But if we are going to ensure that the tools are appropriate to the task, and if we are to preserve the privacy so essential to a free and democratic society, we must know what the government is doing, and we must build in regular Congressional reconsideration. Otherwise, we are in danger of forfeiting our liberties by default.