Later On

A blog written for those whose interests more or less match mine.

The 46 recommendations regarding the NSA

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Amy Davidson has an excellent examination in the New Yorker of the 46 recommendations from the panel that Obama named. It begins:

President Obama’s advisory committee on the N.S.A.’s practices has given him a report, released by the White House on Wednesday, that is three hundred pages longand includes forty recommendations. Some of the recommendations include specific steps to be taken or suggest changes to structures and procedures—that there be a public-interest advocate to “represent privacy and civil liberties interests before the Foreign Intelligence Surveillance Court”; that phone records be held by phone companies and not the government; that tech companies not leave vulnerabilities in their products that allow the N.S.A. slip in—but most of all it argues for a change in thinking. The thirty-page executive summary might be further condensed to a few sentences: Don’t do things just because you can. Tell people what the rules are. Remember that “security” doesn’t just mean chasing terrorists—it “refers to a quite different and equally fundamental value,” spelled out in the Fourth Amendment: “The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Stop shutting down debate by muttering about a “balance” that needs to be struck between security and freedom—they are not on opposite sides of the scale. Start thinking about privacy.

It is sobering to see how many of the recommendations include writing into law requirements that the N.S.A. not use certain of its powers unless it has a good reason to do so and does so prudently. The agency has to be told, apparently, that it can only invoke Section 215 of the Patriot Act (the so-called business-records provision) or issue national-security letters to e-mail providers asking for information about their customers if “the order is reasonable in focus, scope, and breadth”—and it has to be told that with the force of law. This appears to be an acknowledgement that, so far, the use of these provisions has not been reasonable.

The report doesn’t propose ending the N.S.A.’s programs so much as making it structurally possible to talk about them. Recommendation No. 7, for example, is that the public and Congress be informed about the “authorities” backing up various data-collection programs “to the greatest extent possible, and consistent with the need to protect classified information.” In other words, they need to be told why the N.S.A. thinks that what it’s doing is legal. One of the extraordinary things we’ve learned in the past few months is that this is all too necessary, since the government has read laws in ways that disagree not only with their public interpretations but with the English language. We don’t need to know that a particular person is being spied upon, but we need to know when it’s legal to spy.

Similarly, the report recommends that telephone and technology companies be allowed to tell their customers, in a general, periodic way, what kinds of information the government is asking for. If you want a sense of the violation, and feeling of isolation, that can occur when this is not the case, read recommendation No. 8: “Nondisclosure orders should never be issued in a manner that prevents the recipient of the order from seeking legal counsel in order to challenge the order’s legality.” (Or read the story of Lavabit.) And it reflects dissatisfaction with the transparency of the FISA court.

There is a lot folded into recommendation No. 6, which . . .

Continue reading.

Written by LeisureGuy

19 December 2013 at 11:40 am

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