A year ago, Rebecca Richards joined the NSA as its director of privacy and civil liberties. As yet, she hasn't testified before Congress because, in her words, "nobody has asked." But she does appear on The Cyberlaw Podcast this week, where she is interviewed by Stewart Baker, a former general counsel of the NSA and privacy skeptic.
One noteworthy exchange concerned the public outrage at Edward Snowden's revelations and how the NSA can retain public support for its activities in a democracy.
"We've spent since the 1970s at least assuming that if we obey the law, whatever was left we could just do it—and we could be creative and enthusiastic and aggressive and use little smiley faces when we succeeded," Baker said. "That turned out to be really devastating for the institution, because as far as I can tell there was very little illegality, if any, established, except for a few things that the institution itself had punished. So it turned out that staying on the right side of the law didn't actually protect the agency from disaster. The question is, what lesson do you learn now that you know being legal is necessary but not sufficient?"
At the end of this post I'll return to the NSA's adherence to the law or lack thereof. For now, let's stipulate that some of its legal activities are being protested.
Here is how its director of privacy and civil liberties answered. An important lesson that "we're really taking to heart" is "no secret legal interpretations," she said. This next part is a bit muddled but worth quoting directly: "If the law on it's face does not—if you have to go through too many contorted legal [inaudible], I mean what is legal? That's where we need to, not have perhaps cute legal interpretations."
(In passing, she mentioned the phone dragnet program, which is ostensibly authorized by Section 215 of the Patriot Act, though an author and prominent champion of the legislation insists that the Obama Administration's secret interpretation of the law twists its meaning to be contrary to Congressional intent.)
It's heartening to see at least one NSA official acknowledging that agencies should not "contort" the law with "cute" legal interpretations, though her interviewer didn't agree. "Isn't the problem there, you say I'm not going to have cute or aggressive legal interpretations," he replied, "but if you want to explain to people what your new interpretation is you kinda have to put it in a context of facts, and context of facts gives a lot away about how your program actually works."
I wish she would've said, Transparency about what the law actually says is a non-negotiable part of having a government by and for the people. Without at least that much transparency, representative democracy cannot function properly.
Instead she said, "I don't disagree. I think this is a work in progress." But she added, "I also think we've had 40 years in which we have not had, there's no demonstration from all of these different reviews that there's been really any illegality, but are we prepared for that for the next 40 years. Is the institution and what we're doing and how we're doing it sustainable both from a national security perspective and from a protection of privacy and civil liberties perspective? You know, we had this grand bargain in 1978, and it worked, but the technology has changed, the threat has changed, and so are we prepared for the next 40 years?"
At least one person at the NSA is publicly airing the possibility that, under current practices, it may pose an unsustainable threat to privacy and civil liberties.
One last point. Both Baker and Richards speak as if there have been no unpunished legal violations at the NSA between the Church Committee and today.
That is incorrect. President Bush's warrantless wiretapping was illegal. The phone dragnet is illegal. The Washington Post reports that "the National Security Agency has broken privacy rules or overstepped its legal authority thousands of times each year since Congress granted the agency broad new powers in 2008." The NSA constantly violates the particularity clause of the Fourth Amendment, even when it gets a warrant from its secretive, one-sided court. And there are many more legal transgressions the nature of which the NSA hides.