In recent weeks, we heard the news that the U.S. Congress finally put some limits on data gathering practices by the National Security Agency — but now reports are contending that in fact, a backdoor loophole means that the metadata problem hasn’t been solved and that the restrictions put in place by the legislature have been reversed through rulings by a secret US court.
FISA Ruling on Transitions for NSA Programs
What’s at issue is a timeline of six months or 180 days put in place by Congress to provide for a transition period for NSA activities. In order to make an orderly transition to a restricted program, the government petitioned the same Foreign Intelligence Surveillance Court or FISA court had been rubber stamping eavesdropping efforts all along. The result was a ruling that would seemingly be in favor of the intelligence community’s intrusive efforts, and the implication that by approving a transition period, Congress was grooving the continuance of business as usual and robust data.
What’s at Stake
So what is this struggle about? What is getting gathered currently?
According to this report in Ars Tecnica, telecom companies provide the phone numbers of both callers and responders to the NSA. They give calling card numbers and reveal the lengths and times of calls, as well as certain information on mobile providers.
As for the use of the metadata, it can be accessed with a reasonable suspicion of involvement in terror activities. There’s the stipulation that at least one party must be participating in a call from overseas.
The Process Right Now
In throwing out an appellate court’s ruling, the FISA court is putting more of the burden back on the legislature to make stronger enforcement procedures to close aspects of the eavesdropping program. There’s a lot of public will to do this in parts of the Congress — the Rand Paul filibuster is an example of that. There’s also a lot of public opinion on the side of privacy. But at this point, it seems like judicial review is weighing solidly on the side of the intelligence community—and that’s going to have an influence on whether NSA data gathering activities are curtailed, and how long it will take to get reforms.
In the meantime, there’s a debate about how best to proceed with public policy, and the role of the average citizen in the process. There’s a lot of talk about tools individuals can use to abstract or shield themselves from scrutiny, including VPNs, web proxies, and anonymity tools. In some respects Americans are having the same kinds of conversations that are now common in Britain, although Downing Street’s obviously harsh new rules are much more of a strong-arm than the responses of American legislators who, for many of them, seem to feel there’s an argument to be made for privacy. In fact, a lot of the controversy around PRISM and similar programs involves just how aware legislators were about what was being done in their names.
The long and short of it is that the judiciary has given Congress additional obstacles to work through to rule in the people’s favor.