A Platform to Build Real NSA Reform

The piece below was first published as part of the New York Times Room for Debate feature "Reining in the N.S.A.," which used this conversation starter:

Last week the House voted to limit the National Security Agency's sweeping collection of telephone records. But the bill approved was scaled back at the last minute and was sharply criticized by the technology sector, privacy advocates and others. Is the legislation heading now to the Senate strong enough to protect privacy? Or is there more that should be done to limit surveillance?

Ambiguities in the measure that passed the House last week would leave the door open to the same kind of abuse we've seen (but only recently learned about) in the 13 years since passage of the Patriot Act. But the House bill's failings notwithstanding, things could have been worse.

The House Intelligence Committee had championed another "reform" bill that would have actually cemented dragnet N.S.A. surveillance into law. That legislation is now unlikely to move. Importantly, passage of the better House bill also at least gives Congress a platform on which to build, and a chance to pass real surveillance reform.

This is the first time since passage of the Patriot Act that Congress has acted in any way to restrain, rather than expand, foreign intelligence surveillance authority.

The Senate must do several things to improve the current text and ensure the law can't be abused. It should start by shoring up the legal heart of the bill: the definition of the "specific selection terms" that will limit the government's collection of Americans' transactional records from third parties. That definition must be as unambiguous and narrow as possible to prevent the government from seeking "bulky" collection orders that demand records from, for instance, an entire area code or Internet router.

Additionally, senators should impose firm time limits on how long the government can keep any irrelevant records swept up under Patriot Act Section 215. Currently, the bill requires the "prompt" destruction of unneeded records, but given the government's proclivity to stretch the law to its outer bounds and beyond, the lack of a solid deadline may lead to abuse.

The Senate must also ensure that every significant legal opinion of the Foreign Intelligence Surveillance Court — the primary judicial check against the government's misuse of its secret surveillance authorities — is disclosed to the American public. If we've learned anything in the past year, it's that public scrutiny is a powerful corrective to government overreaching, as secret lawmaking and secret adjudication of Americans' privacy are antithetical to the way our democratic system is supposed to work.

Despite its flaws, the House bill still reflects the clear Congressional intent (with documentary support from the Obama administration) to end bulk surveillance. That's important. This is the first time since passage of the Patriot Act that Congress has acted in any way to restrain, rather than expand, foreign intelligence surveillance authority. The Senate must now take up the mantle and go even further to protect Americans' privacy rights.

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Anonymous

Oh, you mean they actually did some WORK for a change? Well, what makes them the famous final word on the issue, to think that their opinion in the matter is preferred? I have my own views.
The only thing that damnable boehner knows how to do is be a jackass, just like all his followers, about whom he doesn't give a good gd unless they're part of the elite few. If they're in the 1 percent he cares about them, but that's nobody who's so stupid they have to run their mouth at everyone they see. Wealthy people DON'T do that, and anyone who spends all their time doing it ISN'T in the 1 or even 10 percent wealthiest people in this country.
I lived with a doctor before and he never did ANY of that. People who do are losers just like their damn stupid boehner and bush the second.
I liked the first one. I still like the first one a little.
But just about now, I hate everyone who ever talked to me when they've never even met me.
It's the dumbest freakin' shit people do online. Talk to someone they've never met, never will know but have to talk anyway. Never mind that you never asked their stupid asses to talk.
In fact, I'd rather talk to anybody in the House of Representatives, inCLUDing Michelle Bachman (who I hate more than anybody) than ever have to listen to a freakin word some nameless faceless absolute NObody gutless wonder ever says again.

Not that anybody asked but I disagree with a large portion of it. And I almost completely disagree with the fact that our government is even reMOTEly like the one in 1984.
Are they vaporizing people? I don't think so. Because if I could have someone vaporized the first ones to go would be anybody who had the damn nerve to talk to me like I'm trash even though they've never met me.
That's not the only thing either. The government in 1984 is so extreme that the comparison between It and Our Government is like comparing water to extra tangy lemonade.
This is said by a person who's halfway through the book, 1984. I'm sure that almost nobody who talks as if our government is EXACTLY the same has even read the book, or they read it so long ago it just isn't at the front of their memory.
I see mild similarities but nothing as dramatic as having someone vaporized.

Anonymous

What really gets me is that this bill, which was very quickly eviscerated and contains no real substance in protecting American privacy, is an attempt to scale back an ILLEGAL (according to the Constitution) program.

What has happened to America when we need to ask a dysfunctional Congress to pass a spineless law scaling back something that was, from the outset, illegal under the terms of the American Constitution?

Anonymous

Unfortunately, given the ability of the NSA to interpret law with significant latitude, the inclusion of "entity" as a "specific selection term" under H.R.3361 would still allow the NSA to collect bulk data by subset. As an example, the NSA might have reasonable suspicion that an al Qaeda cell is operational in "New Jersey" as a specific selection term. Furthermore, requiring communications companies to maintain records is government seizure by proxy, with the communications companies acting as government agents. Even if the government never read any of the records it would still be a seizure of "papers and effects" under the 4th Amendment. It will be like the British telling the local blacksmith to take custody of the personal papers and effects of John Adams in case the British wanted to review the material at some point. Constitutional intent is simply being flaunted by fear mongers, who did not even know what to do with real intelligence data regarding the Tsarnaev brothers. If the legislative intent of H.R.3361 is to require the assertion of "reasonable grounds" the preceding legislation is superflous, as the system of traditional warrants and investigative work would function in an equivalent manner without tempting the NSA to engage in the collection of bulk subsets of data.

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