Sen. Dianne Feinstein's NSA 'reforms': bad for privacy, bad for business

This op-ed originally ran in the San Jose Mercury News before the tech giants released their letter to Pres. Obama and Congress urging widespread surveillance reform.

In August, the Information Technology and Innovation Foundation, a Washington, D.C.-based pro-innovation think tank, calculated that over the next three years, the U.S. cloud computing industry stands to lose as much as $35 billion as international customers find other cloud computing services rather than risk their sensitive data falling into the NSA's giant maw.

The estimate had to make U.S. tech executives' knees buckle.

The fear of looking like data aggregators for the National Security Agency has even led tech giants like Apple, Google, Facebook and Microsoft to release transparency reports about government demands and lobby Congress to rein in the spy agency. Shareholders are now pushing AT&T and Verizon to stand up for user privacy and take similar actions.

So if you had to pick a senator who would be especially attuned to Silicon Valley's fear of how the NSA revelations harm business, a front-runner should be Sen. Dianne Feinstein, D-San Francisco. Yet as chairwoman of the secretive and powerful Senate Intelligence Committee, Feinstein has not only vocally defended NSA's dragnet surveillance programs, but she also introduced legislation -- cynically dubbed a reform measure -- that would entrench and expand the NSA's surveillance powers.

Feinstein's FISA Improvements Act would be a dream come true for the NSA. What was once done in secret with little oversight would get congressional approval. The bill would codify the NSA's unconstitutional call-records program and allow bulk collection of location data from mobile phone users.

Most egregiously, Feinstein's bill allows undefined "law enforcement agencies" to query its foreign intelligence databases, even for U.S. persons, without a warrant. Perhaps even our own local police could try to use its federal law enforcement relationships to get around using court orders to investigate people it doesn't have probable cause to scrutinize.

If Feinstein's legislation were to pass, it would show the world that Congress no longer respects its citizens' fundamental privacy rights. And if Congress couldn't care less about protecting Americans' privacy, what kind of message would that send to the rest of the world, already enraged and frightened by the NSA's insatiable global surveillance? What kind of scarlet letter would that put on America's most popular technological brands?

After seeing the Feinstein bill for what it is -- an NSA wish list -- it's no wonder major technology companies sent a letter of applause to the bipartisan members of Congress behind the USA FREEDOM Act, which limits NSA surveillance and brings the surveillance programs out into the sunlight.

Since the rise of Facebook and social media in general, there's always been a pernicious myth that people no longer care about their privacy because of how much information they reveal online. Thankfully, the global reaction to the NSA's project to make privacy extinct shows just how very precious privacy remains to people, no matter where they call home or on what side of the political aisle they may sit.

Privacy isn't just a human right; it's essential for business. America's most dominant tech industries are already threatened with paying a very high price for the NSA's overreach, which Feinstein says she largely knew about, supported and enabled.

If Feinstein has her way, she won't only irreparably harm everyone's privacy rights, but also the nation's economic competitiveness globally. Talk about a lose-lose situation.

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Anonymous

I'm not trying to be disrespectful, but it would appear that a single sided view of the entire situation is being commented on. Civil matters, which are what ALCU very much supports, are invalid in certain cases. One must remember that the US Government may use and gather data, that is indeed necessary in many forms, as a matter of Security to protect its citizens. Security is not a civil matter in government use.

Unfortunate the argument cannot be in any way civil, in defense matters, rules of civil procedure prohibit it. Human Rights are rights as humans, would you agree? The NSA has not prevented any one person's human rights from being exercised. There has been no violation of civil rights of one person that has caused harm to a nation. NSA has not violated any civil rights because it is not a civil agency. Therefore the case cannot be valid.

The courts in the US under any umbrella of civil jurisdiction, cannot include on any level, a matter of national defense, the jurisdiction cannot be both civil and national. The constraints of laws in this area are not under the jurisdiction of Congress. Thus it would not provide ability to proceed in any level of a Congress Hearing. Since the NSA has not harmed the citizens in doing their job, whether or not a singular complaint exists, it provides no ability to proceed.

It's not that the state of the world and the advances in technology are being used in a sole capacity to abuse, hinder, or weaken a nation, so there is no harm the security has caused to a nation, by doing its job. NSA is in fact, doing exactly what it by law was enacted to do. That is provide "Security" to a nation.

When an employee of the NSA took the job, there were no reasons to not understand the nature of the task of national security entity does.

However it does oblige the employee to not tamper with, hinder, steal, or allow harm to a nation. It allows for the nation to not use civil court to prosecute a violator. The laws are only under National Defense. Security of the nation is the job of the national defense department. Defense does not imply it is limited to confrontational or limited scope capacity. Defense allows necessary precaution.

The law is clear, the duties of the employee are treated as any person who is in a position of trust, or hold national secrets in their possession. To use or remove or copy with intent to disclose any information that is considered classified or restricted is expressly prohibited. To remove or expose information that is sensitive and which could cause effect from countries who do not participate in treaties or is considered hostile, is forbidden, and must be prosecuted under national defense jurisdiction.

The umbrella of this law scope is simple, the NSA has not blatantly nor with intent, damaged the nation by surveillance or any other means they use. This means that the NSA is however, restricted to jurisdiction under the heading of National Security. National Security is under the umbrella of National Defense.
The reason it is National Defense, is in fact the entire reason NSA exists.

So aside from opinion, there exists, no actual defense, for exposing sensitive information and the theft of classified information. There are several ways to proceed under the national defense jurisdiction. The acts are considered and have always been known to the employee as acts of treason. The treason compromised an nation and exposed sensitive information so the nation must treat the acts as any other potential enemy of the nation.

While I can understand the frustration of the many people who think that the constraints of law are adjustable. The employee knew that duties he was performing prohibited actions when he stole information. The NSA is not proven negligent in any way, as the nation has not been harmed.

The employee does not have any applicable personal RIGHTS under the jurisdiction of national defense. National defense is a non private and restricted to a specific area of law. National defense law is handled in court and by officials who are bound by laws to not provide transparency.

When the law is under these category or umbrellas, the case won't prove the ability to move forward, because it cannot be taken to any court. Does reason exist other than the theft and disclosure of sensitive information on the part of a trusted employee, or did NSA fall derelict in its duty, in the employment of the employee. No. Can it be held accountable for harm to a nations by the actions of an employee? It doesn't have merit here, since NSA did not participate or knowingly allow the actions. The NSA did not have any reason to question the trust of the employee, because the employee violated the established trust and there was no indication the act would occur.

The point is no matter where anyone may have an opinion as to their ideal method of maintaining national security, the state of the world and in specific hostile countries, and countries who have engaged in actions which may threaten the nation did give cause to use any means which technology affords as the best method to provide its role in the national defense program.

The choices the employee made have consequences. The employee knew the acts were a form of treason. Traitors are considered hostile and traitors are an enemy to a nation, when matters of national defense are the scope of law that is violated.

No matter where you try to take the case, it fails. The employee could have quit his job, and the employee could have passed the information along to the next level of authority in the nation, but did not. The employee secretly removed items which could hinder or weaken the ability to provide national defense.

The matter remains more sensitive and more in violation when the employee removed information from the US. The employee, was allowed sanctuary with the country, which was in an effort to hide, because the employee was in fear. He should be, he broke the law, and knew the severity of the crime. No particular need or reason exists that would allow for this to not be a threat.

The actions impaired investigations which were in progress. The exposure caused the nation to have its most sensitive information type, national defense, a position of importance for the safety and security of a nation therefore it will never be any defense that could affect the guilt or lessen the crime.

So the waste of time and resources to cause any sort of public civil attention or jurisdiction only exists by law in matters considered national defense. The necessary means and details of investigations that exceeded the clearance of the employee surpass the opinion of any human rights or civil rights case. The law affords this ability.

Terrorists and hostile countries have proven historically a need to use all means necessary to provide security to a nation. The citizens of the nation have a right to expect the protection and there are no freedoms or rights that have any purpose tat places one person before a nation, when it comes to security in matters of national defense.
No matter how you approach it the same brick wall just keeps coming up. The attention that the organizations like ACLU will never on an international level nor in the US can ever be brought to any civil matter court. The foreign office is under the national defense obligation. The act of treason when on foreign ground becomes a matter of national interest, and must be considered a dangerous action by someone hostile, upon the theft and exposure of sensitive information.

I cannot see any way that National Defense is the scope of law. I keep trying. The human rights were violated by the employee which affects the citizens as a whole. The details of any single case cannot be argued as good enough reason to violate the law. Moral issues are contrary to a reasonable action. Ultimately the employee did his job, accepted pay, and agreed to not abuse the position or trust. The employee caused his own harm and is in custody of a nation outside of the US. Those who have him are not required to return the employee. All rights , constitutional or civil or human, are no longer exercisable because the employee left on his own with stolen information.

Treason is punished at the highest level. The history and law of the penalty of treason is well known to the employee , so the consequences are entirely his own fault.

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