What the President Said -- and Didn't Say -- About Surveillance

First and foremost we must realize that democracy cannot survive when the government conducts surveillance through secret interpretations of laws adjudicated by a secret court issuing secret decisions. While foreign intelligence must often operate in the shadows, we need laws arrived at openly, and agencies that operate within those laws. The president made a start on Friday with some steps to improve transparency on NSA surveillance. Now it is time for Congress to do that as well.

President Obama was correct in Friday's news conference that there has been no evidence of the "government actually abusing these programs and listening in on people's phone calls or inappropriately reading people's emails." The president recognized the growing public anger over extensive surveillance, and his announcement of civil-liberties protections on the NSA surveillance provided some comfort. While the actual meaning of "greater oversight, greater transparency, and constraints on the use of this authority," is presently unclear, the commitment to having FISA Court hearings include an adversarial side is an excellent -- albeit long overdue -- step. Publishing the Department of Justice's (DoJ) analysis on legality of the metadata collection is another important step. So is, perhaps, the appointment of a full-time privacy and civil-liberties officer at the NSA, although the value will be determined by the actual powers the position carries.

DoJ's rationale of the bulk collection of metadata focuses on relevancy to an authorized investigation, since that's the grounds for collection. But the analysis notes that the court cases cited, "do not involve collection of data on the scale at issue in the telephony metadata collection," although "the 'relevance' standard affords considerable latitude, where necessary, and depending on the context, to collect a large volume of data in order to find the key bits of information contained within." DoJ states that, "The potential need for communications metadata is both persistent and pervasive across numerous counterterrorism investigations in a way that is not applicable to many other types of data. Communications metadata therefore presents a context in which using sophisticated analytic tools can be important to many investigations of international terrorism, and the use of these tools in turn requires collection of a large volume of data to be effective."

But that is exactly the reason the metadata collection is so troubling. While President Obama emphasized that the section 215 collection of metadata did not allow the government to listen in, he did not note that telephone metadata is remarkably revelatory. As I wrote earlier, "Transactional information can be more revelatory than the content of the calls, which is currently much more highly protected by law." Studying who you call and when you call them reveals who is important in your life, whether you're having an affair, if you are suddenly talking with the doctor, the cancer clinic, and your extended family, if a corporation's CEO is acting to acquire another company, whether an elected official is considering a switch on a tightly contested vote. Just looking at your patterns of communication gives this away. The fact is metadata is often much more important than content. The president ignored that issue.

DoJ stated the Executive Branch "also worked to ensure that all Members of Congress had access to information about this program and the legal authority for it," and provided the House and Senate Intelligence Committees with a classified briefing paper on the telephone metadata collection program. This document was made available to other members of Congress -- but it seems many members did not know about the bulk metadata collection until the Snowden revelations began.

Oversight has clearly been lacking. The FISA Amendments Act allows warrantless wiretapping of "targets" so long as they are non-US persons not located in the US. But a secret DoJ document released by Snowden describes procedures for targeting that goes well beyond this, "[I]n those cases where NSA seeks to acquire communications about the target that are not to or from the target, NSA will either employ an Internet Protocol filter to ensure that the person from whom it seeks to obtain foreign intelligence information is located overseas, or it will target Internet links that terminate in a foreign country." In other words, it is not just the target who is the target; anyone writing about them, as long as one end of the communication is outside the US, is as well. So a US reporter overseas, or an American businessperson using a VPN that makes it appear she is out of the country, a student writing a friend abroad -- any of those people -- are subject to being warrantlessly wiretapped by the NSA if their communications include "foreign intelligence information." And foreign intelligence information is a broad term; it could mean discussions of al Qaeda, or the state of the British economy, or cyberattacks being reported in the press.

How did we develop into a state conducting surveillance based on secret interpretations of public laws? How did we let a court that operates in secret approve programs that allow warrantless wiretapping? That is at the core of what we need to know. What the president didn't suggest is a Congressional investigation -- a new Church Committee if you will -- to determine how all this occurred, and to prevent it from happening again.

And while President Obama suggested "independent voice in appropriate cases by ensuring that the government's position is challenged by an adversary" in the FISA Court, he did not suggest a more public FISA Court (FISC). We need insight into the FISC process, some way of knowing what decisions are being made and what the rationale is behind them. One alternative could be redacted versions of FISC decisions, perhaps with several years delay; another might be somewhat more complete public reports on yearly activity (currently the only public information about FISA Court decisions is the annual number of wiretap orders).

The fact is that democracy cannot survive when the government conducts surveillance through secret interpretations of laws adjudicated by a secret court issuing secret decisions. While foreign intelligence must often operate in secret, laws in a democracy, and their application, must be vetted in public. The president began a process for transparency; now it is time for Congress to further that process.