The Battle to Retake Our Privacy Can Be Won - Really!
After months of inaction – and worries that real change at the National Security Agency was indefinitely stalled – there was a flurry of action in Congress this week on the most promising NSA reform bill, as the USA Freedom Act unanimously passed out of the House Judiciary Committee and then, surprisingly, out of the Intelligence Committee, too. Only its movement came at a price: the bill is now much weaker than it was before.
What would the legislation actually do? Well, for one, it would take the giant phone records database out of the NSA's hands and put it into those of the telecom companies, and force judicial review. Importantly, it doesn't categorically make anything worse – like the House Intel bill pushed by Rep Mike Rogers would have – and it would at least end the phone records program as it exists today, while making things a little bit better for transparency.
However, anytime Rogers calls a bill "a great improvement," anyone who values privacy should be worried. The transparency section of the billdoesn't require nearly as much disclosure as it did previously, and there's no longer a full-time privacy advocate for the Fisa court in there – only the chance for outsiders to submit legal briefs. Plus, the "mandatory" declassification of Fisa court opinions now only "encourages" the executive branch to be forthcoming – a policy which the ace surveillance-law analyst Marcy Wheeler described as follows: "it only releases opinions if Edward Snowden comes along and leaks them."
Reactions to the new bill from NSA reform supporters have been mixed. Both the Electronic Frontier Foundation (EFF) and American Civil Liberties Union called it a positive step, but emphasized how much still needs to be fixed. Wheeler was more cynical in her analysis, suggesting it may be just as bad as the Intel bill that was so universally panned by national security watchers. But Kevin Bankston, the longtime surveillance reform crusader and policy director at the Open Tech Institute, explained the predicament well:
The bill is also far from a done deal; it can still get improved on the floor. If tech companies are serious about forcing NSA reform, then now is the time for them to step up lobbying efforts and prove that their public comments about changing surveillance laws amount to something more than a well orchestrated PR campaign.
But the battle to retake our privacy can't be won in the halls of Congress alone. Even the original version of the USA Freedom Act didn't do anything about the NSA's subversion of common encryption. It didn't address the stockpiling of zero-day vulnerabilities that puts internet security at risk. It didn't offer any privacy protections to 95% of the world that doesn't live in the United States. And given the NSA's unique talent for distorting the plain meaning of the English language (in fact, they seem to have created an entirely secret, bizarro dictionary of its own), it's always possible the agency will find a way to subvert the will of the people it allegedly serves.
This is the primary reason why a host of public-interest groups launched something called Reset the Net last week. The campaign calls for major websites and the general public to widely adopt end-to-end encryption tools to stem the ability of the NSA – or any other intelligence agency – to conduct mass surveillance, regardless of what our laws look like. The campaign will culminate on 5 June – the one-year anniversary of the Snowden disclosures – with a giant online push to get ordinary internet users signed up and using the tools that are so critical to keeping our information private online.
The chance to challenge the government's secret surveillance tactics has never been stronger on the judicial front either. Two cases brought by the EFF (my former employer) have been flying under the radar – at least compared to the more high-profile cases challenging the NSA's phone records program – and will soon take on added significance.
First, and important appeal is set to be heard this summer over the government's use of National Security Letters, and oversight-free mechanism which the FBI has used to force internet service providers with no judicial review whatsoever. Last March, in an enormous win for privacy and free speech advocates, a federal judge ruled the entire National Security Letters statute unconstitutional. Given there are thousands of oversight-free letters issued for personal information every year with a gag order attached (the ruling is on hold until the Court of Appeals rules on the case), winning this fight would appear to be at least as crucial for our privacy as passing the USA Freedom Act.
EFF's long running case challenging dragnet spying, Jewel v NSA, which deals with the larger issue of the NSA accessing entire internet streams of telecommunications companies like AT&T without a warrant, is also set to heat up this summer. This is the crux of the NSA's mass surveillance program directed at the internet, which the government refused to acknowledge even existed until Snowden's revelationsconfirmed "upstream" surveillance last year.
Plus, since the Snowden disclosures forced the government to admit to criminal defendants when they have been wiretapped without a warrant, the constitutionality of the Fisa Amendments Act may finally have its day in court. The strengthening of international treaties and surveillance laws could also eventually bear real fruit for those outside the US.
Of course, none of this kind of reform was ever going to get decided in a day, or even a year. At the recent premiere of the new documentary 1971, which examines the formerly anonymous burglars who uncovered J Edgar Hoover's illegal surveillance campaign, and whose actions led to the Church Committee, its subjects reminded the audience that their disclosures didn't result in significant change ... for five years. But thanks to the relentlessness of reform advocates, we all got reform that lasted decades. It is, they said, now up to the public to persevere once more.