Months of furor over the NSA’s surveillance program have come to a head: a panel of advisors appointed by President Obama to make recommendations on reforming the NSA have released their report. The NYT has the details:
In backing a restructuring of the N.S.A.’s program that is systematically collecting and storing logs of all Americans’ phone calls, the advisers went further than some of the agency’s backers in Congress, who would make only cosmetic changes to it, but stopped short of calling for the program to be shut down, as its critics have urged. The N.S.A. uses the telephone data to search for links between people in an effort to identify hidden associates of terrorism suspects, but the report says it “was not essential to preventing attacks.” […]Under the new system proposed by the review group, such records would stay in private hands — either scattered among the phone companies or pooled into some kind of private consortium. The N.S.A. would need to make the case to the surveillance court that it has met the standard of suspicion — and get a judge’s order — every time it wanted to perform such “link analysis.”
Overall, the recommendations call for tightening up oversight over the NSA without disposing of key programs necessary to US interests continue. Perhaps the most important reform that the report suggests is to create a public interest advocate who would represent the public’s civil liberties at the Foreign Intelligence Surveillance Court. FISA is notoriously shadowy, and lacks the adversarial elements that the rest of our system contains. Establishing an office dedicated to opposing restrictions on privacy and civil liberties is a big step forward to making FISA better.We don’t necessarily endorse all the details of how that balance is struck here, but it looks like the authors of the report got the broad principles right. American public opinion on these issues is changeable. Snowden-like revelations in times of relative domestic peace will—as they did here—motivate a powerful reform movement, but if, God forbid, we were every attacked again, the weight of public opinion would shift towards broader surveillance powers. What’s needed, in both the NSA specifically and digital privacy more generally, is “ordered liberty” that reflects the ordered liberty we apply to the rest of American life. A good ordered liberty wouldn’t necessarily prevent all further swings towards or away from surveillance, but it would help keep things more stable going forward. Reforms—especially at the FISA court—that will help introduce a little more liberty into order are therefore very welcome.