One Perspective: Reforming the NSA's surveillance practices

 Scott Forsyth, The Daily Record Newswire

Thanks to Eric Snowden, last June we learned the NSA was collecting from the major telephone companies the “metadata” or the transactional information of all domestic calls made since late 2001. The NSA retained the information for five years. A government oversight board estimated in 2012 alone the NSA added the complete calling records of 1.5 million persons to its database.

The metadata does not include the content of the calls. On the other hand, from the metadata the NSA or any other government agency may construct a detailed profile of a person — whom she contacts, how, when, and, with a little interpretation, why.

The NSA did obtain a series of rolling, blanket orders from the Foreign Intelligence Surveillance Court allowing the collection. The court issued the orders pursuant to 50 U.S.C. 1861, popularly known as Section 215 of the Patriot Act.

Section 215 provides a way for the government to compel a third party to produce “any tangible things (including ... records ... ) for an investigation to obtain foreign intelligence information not concerning a United States person.” The things must be “relevant” to the investigation. The law gags the third party.

The proceedings in the court are secret, so we do not know how the metadata on all domestic calls was relevant to a particular foreign intelligence investigation. Furthermore, the orders permitted the NSA to search the data collected whenever it had a “reasonable articulable suspicion” the data may be connected to terrorism or espionage. Before February of this year the NSA did not need the court’s advance approval for a search.

Snowden’s revelations sparked much debate about the practice — its utility versus its intrusiveness on privacy. This debate is just a piece of the larger debate since 9/11 about whether we must give up some of our freedoms to gain greater security or whether we can be both safe and free.

President Obama, being who he is, has tried to show some moderation since the revelations. He formed a group to study the practice. Last week he announced he would support a bill, not yet introduced, that would end the NSA’s authority to collect and store en masse metadata under Section 215.

Instead, the telephone companies would store the metadata for 18 months. The government would have to obtain an individual order to collect a particular record or records.

The president’s ideas are a good first step. Like many a reform proposal, they can be improved upon.

The president would water down the standard for the issuance of a Section 215 order from relevance to reasonable articulable suspicion. This should not happen. Both standards are less than probable cause.

He would retain the NSA’s authority to obtain records “two hops” removed the object of the foreign intelligence investigation. All persons who call or have been called by the object make up the first hop. All persons who have called or been called by the first hop make up the second hop.

The ACLU conservatively estimates a person talks to 200 different people in 18 months. Those people speak to another 200 persons each. Reaching out two hops enables the government to vacuum up records relating to 40,000 people. If one of the persons in the first hop is a high-volume caller, like a pizza shop, law firm or hospital, the numbers get worse.

Before the NSA hops from the first to the second level, it should go back to court to obtain another order. It needs to show how the metadata about the calls made by the caller once removed from the object of the foreign intelligence investigation is relevant to the investigation.

The president does not recommend any limitations on the NSA’s use of the metadata collected to date. He and Congress should do so. While the Foreign Intelligence Surveillance Court has the authority to regulate the NSA’s use, it has declined to exercise the power.

The president’s proposal only addresses telephone records. Similar measures safeguarding other sensitive records, such as email and instant-messaging contact lists, should be adopted.

Congress does have before it a broader reform bill, called the USA Freedom Act. It has more than 160 bipartisan sponsors in the House and Senate. Sadly, neither senator from New York has signed on and the representatives from Western New York are equally silent.

It is time for the president and Congress to curtail the surveillance practices of the NSA. Doing so will help restore the people’s trust in their government.

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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

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