Reforming the NSA: How to Spy After Snowden

Coauthored with Daniel Byman, Foreign Affairs, May-June 2014

The long-running debate over the tradeoffs the United States should make between national security and civil liberties flared up spectacularly last summer, when Edward Snowden, a National Security Agency contractor, handed journalists a huge trove of heavily classified documents that exposed, in excruciating detail, electronic surveillance programs and other operations carried out by the NSA. Americans suddenly learned that in recent years, the NSA had been acquiring the phone and Internet communications of hundreds of thousands of U.S. citizens, as well as collecting massive volumes of bulk telephone records known as “metadata” — phone numbers and the time and length of calls. Along with the rest of the world, Americans found out that the NSA had broken common forms of online encryption, tapped the phones of various foreign heads of state, and monitored global communications far more aggressively than was previously understood.

Howls of outrage erupted. Brazilian President Dilma Rousseff, who learned from the Snowden leaks that the NSA had been monitoring her personal conversations, described the NSA’s activities as a “violation of human rights and civil liberties,” decrying the “disrespect to national sovereignty.” In the United States, both ends of the political spectrum denounced the NSA’s activities. Rand Paul, a Republican senator from Kentucky, called them “an all-out assault on the Constitution,” and the former Democratic vice president Al Gore said they were “obscenely outrageous.”

Proposals for reform are now legion. Soon after the leaks, President Barack Obama appointed an independent group of experts to examine the issue. The group’s report, published last December, recommended more than 40 far-reaching reforms, including ending the government’s bulk collection of telephone metadata and restricting surveillance on foreign leaders. The panel suggested that telephone providers or a private third party, not the government, should hold the metadata and give officials access to it only when ordered to do so by the secret Foreign Intelligence Surveillance Court. The panel also recommended requiring the FBI to obtain judicial approval before issuing a “national security letter,” a form of administrative subpoena the government uses to obtain phone numbers, e-mail addresses, and financial transaction records. Congress is also mulling action. Last October, Patrick Leahy (D-Vt.), chair of the Senate Judiciary Committee, and James Sensenbrenner (R-Wis.), former chair of the House Judiciary Committee, proposed a major rollback of the NSA’s programs. At the same time, the Senate Intelligence Committee put forward a modest bill that tinkered with, but largely validated, the current legal status quo.

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