Taming the NSA – Reform Bills Fall Short

by Dinah PoKempner Dinah PoKempner is General Counsel at Human Rights Watch 31.10.2013

The legislative wheels are spinning furiously on Capitol Hill, as US lawmakers put bills in play in response to the global fury over rampant surveillance by the National Security Agency (NSA). These proposals go some way in placing surveillance under stricter controls. But none goes far enough.

Yesterday, [Editor's note: Oct 29] an original author of the USA Patriot Act introduced a bill to limit NSA surveillance. Rep. Jim Sensenbrenner’s proposal has many positive features, including requiring the government to get a court order to search the substance of Americans’ communications; creating a special advocate to defend privacy and civil rights before the secretive Foreign Intelligence Surveillance (FISA) court; boosting public reporting and transparency on surveillance orders; and tightening conditions for collecting metadata and other “business records.” Under the bill, surveillance would need to “pertain to” rather than “relate to” a foreign target. It is unclear if this is a distinction without a difference given the way the government has stretched the current authorizing language to breaking point, or whether it would really “end bulk collection” as Sensenbrenner promises. 

Rep. Rush Holt’s bill, however, has very strong features too – it just gets rid of the legal provisions that allow mass surveillance, and returns foreign intelligence collection to requiring a valid warrant for surveillance of “US persons” after a showing of probable cause. Holt would also protect intelligence whistleblowers, and prevent government from requiring backdoors in electronics and software to circumvent privacy protections. Both are likely to be vastly better than the legislative proposal Senator Diane Feinstein is preparing, which she has suggested would preserve the government’s authority to do bulk data collection, while making a few cosmetic changes to improve transparency and fine-tuning when analysts can access the intelligence trove.

But Congress is missing some critical points. First, none of these bills requires the US government to respect the privacy of foreigners abroad. Upholding universal rights means it’s not ok for one government to torture the citizens of another overseas, or forcibly convert them, or punish them for simply speaking ­– so why is it ok to violate their privacy without cause or redress? And so far, no bill requires a thorough and independent congressional review of all US surveillance programs, so they can know the scope of the problem they aim to fix. Chancellor Angela Merkel’s phone was probably monitored by the US in Germany under Executive Order 12333, which authorizes collection of any intelligence the administration requires, and not any of the laws these bills would reform.  That’s the same authority behind today’s revelation that the government is siphoning off massive data from Google and Yahoo communications links outside the US. The full extent of corporate involvement in US surveillance, or the US government’s efforts to weaken cyber security, are also unknowns. These issues need to enter the debate, and quickly, if Congress wants to act before Europe loses patience and takes its own measures to restrain US data collection.


First posted on the Human Rights Watch web site, posted here with their kind permission.

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