Privacy Reform, The NSA, And The “Spy Court”

An interesting and important effort is underway in Washington, D.C. to address the delicate balance between data-gathering by the National Security Agency and other federal agencies and the privacy concerns of American citizens. President Obama is set to explain his views in a speech on Friday. In the meantime, Congress is holding hearings on the issue and is getting some meaningful feedback on its reform proposals — which is precisely what congressional hearings are supposed to accomplish.

A key issue with reform of intelligence-gathering efforts is the lack of information about such efforts. Clandestine programs by definition are not transparent; knowledge is limited to a small group that is sworn to secrecy. When information about the programs leaks — as happened with Edward Snowden’s disclosures last year — people react with astonishment and concern. But how do you achieve reform, and have a full airing of competing views, if the programs remain inside a black box?

That’s why congressional hearings are such an important tool. Yesterday the Senate Intelligence Committee received testimony about reform efforts, and one of the submissions was from U.S. District Judge John Bates, the current Administrative Judge of the United States Courts and the former chief judge of the Federal Intelligence Surveillance Court — the so-called “spy court” that considers governmental surveillance requests. Bates wrote in opposition to proposals that an independent “privacy advocate” be appointed to bring competing viewpoints to the court’s attention; he argues that given the nature of the court (such as the fact that the advocate could never communicate with the proposed target of the surveillance) the advocate could never provide a truly adversarial perspective or help the court consider the facts.

Bates also opposed a proposal to require the court to pass on every “national security letter” the government sends in an effort to obtain information from third parties. Bates noted that there are 20,000 such letters each year and argues that requiring court approval of each one would bury the court. It’s hard to dispute that conclusion; 20,000 letters amounts to about 55 letters each day of the year. How are the judges on the court supposed to give meaningful consideration to each such letter along with their other workload?

It’s difficult to stake out a position on these issues because the secrecy of the programs means the general public may not have all of the pertinent information. No one wants to undercut national security concerns, but the Snowden revelations have given rise to legitimate concerns that the NSA’s enormous appetite for data collection that touches upon the lives (and phone calls, and internet uses) of Americans isn’t justified by realistic objectives or by results. I’m glad to see that Congress is taking testimony and receiving competing views, and I hope that it and the President make a thoughtful and legitimate effort to tackle the privacy concerns raised by the NSA’s programs.