Last Chance to Fix the NSA
Who can you trust these days?
One of the most striking things about the trove of classified NSA files that Edward Snowden made public last year is that the agency was mostly doing what it was told. Its spying operations -- so staggering in scale, in variety, in sophistication -- had generally been vetted by lawyers, tolerated by Congress, endorsed by the White House and approved by a court.
That led to a strange paradox: The public was alarmed and wanted action, but it wasn't clear who to blame. Reforming the National Security Agency, it turned out, would require reforming the larger legal regimes that enabled it -- something that seemed beyond the capacity of this Congress.
Until last week. On Nov. 12, Senator Harry Reid announced that a bill called the USA Freedom Act would soon be up for a vote. The bill would end some of the NSA's most objectionable behavior and subject it to improved oversight. Its passage would represent some substantial and unexpected progress in Washington.
Most crucially, the bill would end the bulk collection of U.S. phone records, an invasive and largely ineffective practice. Both an independent review board and the NSA's privacy watchdog found that it hasn't been essential to the fight against terrorism. The NSA would still be able to search records held by phone companies during an investigation, but it would need a court order to do so. That's a major improvement.
The bill would also make the NSA's oversight somewhat more transparent. Major decisions by the Foreign Intelligence Surveillance Court, which oversees the agency, would be made public in redacted form. A civil-liberties panel would be able to challenge some of the government's assertions before the court. And estimates of how many people are affected by certain surveillance programs would be made public. All of which is progress.
Yet some caution is still in order. The NSA is nothing if not adept at exploiting imprecise language, and there's a danger that it could interpret some provisions of the bill -- such as the part banning bulk collection -- to be a lot more permissive than Congress intends. Preventing that will require vigilance from the agency's overseers.
The bill also fails to fully address two other legal authorities -- known as Section 702 and Executive Order 12333 -- that the NSA uses to conduct espionage on a grand scale. Reforming them is a fight for another day, but one that shouldn't lose urgency if this bill passes.
Remarkably, civil-liberties groups, Silicon Valley and the intelligence community have all expressed support for the USA Freedom Act, making it possibly the only thing in the world they will ever agree on. The bill offers Congress an opportunity to end an intrusive and ineffective spying program. And it would help restore the public's faith in its intelligence agencies. It should become law.
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