The NSA disclosure drama is about six weeks old now, and I have some reflections. Most are mundane recommendations, repeats of previous thoughts tailored to the current issue. A few others expand thinking as a result of recent developments.
Twelve years after the USA-Patriot Act, the first recommendation has almost become a refrain: amend the Electronic Communications Privacy Act. Internet technologies operate differently than telephony, the technology upon which the Act mapped Fourth Amendment jurisprudence. Internet protocol addresses, for example, can disclose content through a browser, which is not possible with a telephone number. Either the showing for law enforcement must be raised in both Title III and FISA Courts for "conversational detail," or the law must reset the constitutional compass.
There are many other deficiencies of the Act, such as the chaotic levels of protection for “stored,” “transmitted” and "opened" electronic mail. With many decades of user experience under our collective belts, these antiquated, meaningless distinctions should not be difficult to harmonize. But the genuinely dysfunctional aspect of the Act is that digitized packet-switching is now the prominent technology for telecommunications, ironically including telephony (Voice over IP). To have the law based on last century’s “shared” analogue technology is poor form for a culture tripping over itself to “innovate.” Furthermore, it is this lapse between analogue and digital technologies that underlays confusion about exactly what kind of data is captured and under what form of legal circumstance. Simple polling of what the public thinks about privacy is meaningless in light of this confusion.
The second is to establish an independent body of technologists, for example from the Academy of Sciences, who would be appointed on a rotating basis with the purpose to examine the technology the government uses in these searches. Some of the technology are devices, such as routers and switches, and probably belong to the telecoms. Deployment in service to legal process should not make them public property per se, but subject to regulated technical review. Remember when the New York Times uncovered the illegal tapping the Bush Administration exacted from the telecoms that resulted in the FISA Amendment Act? Legal process was not the only problem: some of it was different technical interpretations of “conversational detail,” including both full email headers and sometimes even the content of messages. Disclosures grounded in technical, procedural sloppiness are correctable errors, but to fix them might require governmental procedural process.
Software that the government designs and/or uses to detect patterns of behavior suspicious for terrorism or to tract suspected terrorists should be examined for accuracy as well as efficiency. Enough of third-party vendors. Not only do they lack oversight, but the profit motive does not bequeath the quality of personal and professional integrity needed at this civil juncture. Let’s look to our scholars who have expertise and the spirit of free inquiry in their intellectual sails. That spirit is precisely what we need to lead us out of this Scylla and Charybdis of paranoia and cynicism about government surveillance. Many academics chose university over corporate life because they appreciate intellectual freedom, prize acknowledgement over money, and have a desire to serve a higher purpose than the bottom dollar. What an honor it would be for scholars to contribute to a very large public good by putting their skills to work to rebuild trust.
Third, and perhaps most obviously, the FISA courts require more robust oversight. Appeals for FISA should have some demonstrable connection to the D.C. Appellate and Supreme Court. The ex parte nature of the process is legally insufficient by any stretch of the due process definition. Reports to Congress are also not an answer because confidentiality ties tongues. Finally, the whole concept of secret courts demands rethinking. Is it the courts that need to be secret, or aspects of the cases? Seems to me it is the latter that is material. A democracy should lift the veil on the courts themselves.
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