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August 04, 2013 10:44 AM A Close Look at a Few Ideas for Surveillance Reform

Quite a few different proposals have been offered for reforming the U.S. security apparatus, but not all of them are likely to be effective.

By Max Ehrenfreund

I spent the entire morning so far griping about our state security apparatus, so in fairness, let me take a look at a few proposals that are floating around for improving it.

1. Making the scope of surveillance public

Several bills in Congress adopt this approach, which seems to me to be the weakest. A bill introduced by Rep. Zoe Lofgren and others would allow technology companies to release data about the number of orders they’ve received and the number of users affected. Sens. Al Franken and Dick Durbin are advocating legislation in the Senate that would do the same and would place reporting requirements on the National Security Agency.

These Democrats should be applauded for rebelling against their party’s leaders, but I’m skeptical of the strategy, which seems to be create popular opposition to surveillance by revealing just how pervasive it is. Yet there already is some popular opposition to the surveillance programs, especially among unaffiliated voters and Republicans, which is why the vote on the Amash-Conyers amendment was so close. The problem is persuading the leadership to support reform, which I doubt they will do even if there is intense public pressure.

What would truly be helpful would be better disclosure of the effectiveness of the surveillance, as Fred Kaplan argues, not just its scope, but the intelligence apparatus’s concerns would probably mean that any such information would be redacted ad nauseum before being made public.

2. Improve congressional oversight.

Sen. Pat Leahy wants to terminate the notorious Section 702 in 2015, two years ahead of schedule. If were a little bit more cynical, I would suggest that passing this bill would just be a way for Congress to appease popular outrage now before reauthorizing the program in two years. Good thing I’m not that cynical.

3. Set higher standards for access to data.

Leahy’s bill would also require analysts to meet a higher standard before analysts can obtain records under Section 215. Sens. Mark Udall and Ron Wyden introduced a similar bill in June. Whether or not these bills would have any effect depends on how they’re worded: whether the new standards involve judicial oversight, and whether surveillance agencies are able to claim that what they’re doing now already meets the new standards.

It is worth acknowledging this column in the Wall Street Journal by Timothy Edgar, who claims that existing standards at the NSA are adequate, but that the NSA needs to be more transparent about its practices in order to regain the public’s confidence. I hope he is right. If he is, what he describes is just one more example of irrational and counterproductive secrecy for its own sake. I hope that’s the situation at Fort Meade, but we won’t know until the NSA opens its books.

4. Reform the Foreign Intelligence Surveillance Court.

A prerequisite for any meaningful change in the threshold for surveillance is reforming the FISA court. Otherwise, the court will continue to allow government lawyers to distort whatever new laws are passed.

I’m very happy about the proposals for reform brought by Sen. Tom Udall (Mark’s brother), Wyden, Sen. Richard Blumenthal, and others. Udall, Wyden, and Blumenthal want to revoke Chief Justice John Robert’s sole authority to appoint the judges to the court, and they want to appoint an advocate who could argue against the lawyers for the surveillance apparatus when they file silly briefs. I’m confident that simply having a more diverse group of justices and lawyers in the courtroom would significantly moderate the court. Consider this study showing that juries with even just one black member are no less likely to convict white defendants than blacks. Hearing a different perspective really can change your worldview.

Sens. Jeff Merkley and Mike Lee also want the court’s opinions to be declassified, a proposal that makes sense as a matter of principle.

5. Repeal.

Complete repeal of the legal basis for the surveillance programs is Rep. Rush Holt’s proposal. I admire him, but I think his strategy is misguided. Even if such a repeal did pass, the surveillance state would, over time, gradually reclaim its authority, especially in the event of another major terrorist attack. What’s needed is a stable compromise that keeps the surveillance state in check without giving the bedwetter caucus the chance to claim that emergency measures are necessary.

6. Make me a senator.

I have a couple of ideas of my own. First, I wonder if Congress would be able to give citizens explicit standing to appeal the secret court’s decisions, whether they are declassified or leaked. I’m not sure of the legal details or whether the legislation described above would do so, but I think Congress might find it convenient to punt the question of surveillance to the Supreme Court, where I’m hopeful advocates of civil liberties might find a more sympathetic audience.

Second, I think the simple step of requiring federal agents to send a citizen an automated alert when her communications are accessed if the communications are subsequently determined to be irrelevant would mitigate the quasi-totalitarian consequences of an ever-expanding surveillance state. The real problem, in my opinion, is that no one knows if they’re being monitored, a situation that historically has led to paranoia and social isolation.

The Guardian has a thorough overview of all the legislation that’s been proposed pertaining to surveillance.

Max Ehrenfreund is a former Monthly intern and a reporter at The Washington Post. Find him on Twitter: @MaxEhrenfreund

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