The following op-ed was co-authored by Ashkhen Kazaryan, an affiliated fellow at TechFreedom.
Early last month, Director of National Intelligence Dan Coats reneged on a promise that the National Security Agency would provide an estimate of just how many Americans have seen their communications collected under Section 702 of the Foreign Intelligence Surveillance Act. It was the same broken promise made to Congress by his predecessor, James Clapper.
Indeed, for the past six years, the NSA has flummoxed congressional oversight with its reluctance to give lawmakers this kind of hard data. And yet, despite this pattern of obfuscation —of promising transparency and then dialing back said promises—Congress is now debating a bill that would give immense power to that same agency.
The legislation, which has left many privacy advocates aghast, comes in the form of a proposal by Sen. Tom Cotton, R-Ark., for a so-called “clean” reauthorization that would leave the current Section 702 intact. Of course, it isn’t actually “clean,” in that Cotton’s bill would remove the sunset provision that forces the program to expire Dec. 31 unless Congress explicitly re-authorizes it. In other words, even as Coats now deems it “infeasible” that the NSA will ever tell Congress how many Americans have been surveilled under Section 702—a number that likely would shock the conscience—Cotton wants to ensure 702 is never up for debate again.
If the NSA will not honor promises to Congress and civil-society groups now—when 702, a program Coats has called “the crown jewel” of the intelligence community, is up for reauthorization—how is the public to trust the agency will honor privacy and liberty when the program becomes law in perpetuity? Make no mistake, this is not fear mongering. This is a constitutional issue where the very notion of checks and balances between the branches of government is quietly under threat.
Coats explained to the Senate Intelligence Committee last month that the NSA ended “about” collection—that is, the practice of collecting digital communications in which a foreign target is mentioned, but is not the sender or recipient—due to technical limitations on the agency’s ability to protect wholly domestic communications. However, he didn’t rule out resuming “about” collection if the agency discovers a technological fix. Paul Morris, deputy general counsel for operation at the NSA, told the Senate Judiciary Committee several weeks later they “might decide” to come back to it anytime. NSA representatives also have warned they would oppose a permanent legislative ban on this type of collection.
A recurring theme from law-enforcement and intelligence community representatives in recent House and Senate hearings is that technological developments can drastically change how government conducts surveillance. But even as agency representatives tell us how rapidly surveillance methods change, a permanent reauthorization of current surveillance methods presumes that future revolutions in technology won’t affect Americans’ relative privacy. Not long ago, few could have conceived of an “email” or that it would become a major tool of communication.
If the intelligence community decides to resume “about” collection, a method proven to have violated Americans’ rights in the past, Congress’s oversight role should not be hamstrung by a permanent reauthorization. Eliminating the law’s sunset provision would limit Congress’s ability to revisit these questions and examine exactly how surveillance methods might change in the future. With far-reaching technological change always looming, Congress must periodically revisit the legal authority behind these intelligence tools — both to ensure they remain effective at protecting the nation, and that adapting an old law to new technologies doesn’t open the door to abuse.
Establishing a sunset for the program shouldn’t be anathema to those who are primarily concerned with national security. To the contrary, it is the best way to ensure the program remains viable and accomplishes the purpose of keeping Americans safe. Permanent reauthorization would limit any attempts to modify surveillance. It also increases the risk of another leak and public outcry, which easily leads to a knee-jerk reaction. Intelligence agencies could shy away from reasonable and effective procedures, absent any obligation to report to congressional oversight.
A kid genius working from a basement today may change the way our systems work tomorrow, crippling the effectiveness of Section 702 or opening the door to abuse. Giving law enforcement and the intelligence community’s great power without built in opportunities to revisit that authorization would be a disservice to the security and civil rights of the American people. In the end, the most critical reform to Section 702 might already be part of the status quo.
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