How the Government Can Fix the Spying Problem It Doesn't Want to Fix

Each of the three branches of the government was involved the NSA privacy breach. Congress passed the law legalizing the behavior. Judges signed off on doing so, for the administration, who was asking. "If people can't trust" all three branches, President Obama said Friday afternoon, "we're going to have some problems here." But if Americans want to halt the behavior, each branch does hold a possible solution. Here's a detailed breakdown.

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Each of the three branches of the government was involved in accessing call data from Verizon (and, apparently, AT&T and Sprint). All three are likely involved in the push for data collection from Internet companies. Congress passed the law legalizing the behavior. Judges signed off on doing so in this case — for the administration, who was asking.

In a defensive press appearance Friday afternoon, President Obama suggested that Americans should feel confident in their collective decisions.

If people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution and due process and rule of law, then we’re going to have some problems here.

If Americans want to halt the behavior, each of those branches also holds a possible solution. If it chooses to do so.

What Congress can do

To understand what Congress can do, it's important to understand what it has already done. Our colleagues at the National Journal have a good overview of the legalization of the government's ability to collect electronic information on American citizens.

In an effort to modernize intelligence-gathering in the wake of the September 11th attacks, Congress passed the PATRIOT Act in October 2001. Included in that bill was Section 215, which expanded the government's ability to collect data as part of its investigations into criminal and terror plots. In 2008, Congress amended the Foreign Intelligence Services Act to include Section 702, which the government cites as its authorization for PRISM. In 2011 and 2012, Congress voted to renew those provisions.

How the government interprets its authority under those acts is one of the core disputes in the aftermath of the recent revelations. As Slate notes, several members of Congress — including Oregon senator Ron Wyden — have consistently attempted to narrow the scope of the government's interpreted authority to reduce the likelihood that information is collected from American citizens. After all, the Fourth Amendment states that the government may not conduct "unreasonable searches and seizures," and that a warrant, including probable cause, is needed for the government to conduct such a search.

When the FISA amendments came up for renewal in 2012, Wyden put a block on the legislation, demanding that it address two concerns: that Congress know how often citizens had been included in data collection under the Act, and stricter rules around collecting data on the issue. Wyden eventually lifted that hold.

Today, Sen. Rand Paul of Kentucky plans to introduce a bill he calls the Fourth Amendment Restoration Act of 2013. It is modeled on previous attempts to restrict the scope of the bill, and is a specific response to the recent Verizon revelation. "The Fourth Amendment to the Constitution shall not be construed," it reads, "to allow any agency of the United States Government to search the phone records of Americans without a warrant based on probable cause." (Calls to Paul's and Wyden's offices for questions about other policy proposals were not returned.)

In a phone conversation earlier today, ACLU national security staff attorney Alex Abdo indicated to The Atlantic Wire that such a restriction wouldn't do much to curtail privacy concerns. At its heart, Abdo suggested, FISA now allows far too much information-gathering of citizens. Asked what the ACLU saw as a suitable policy response to the problem, Abdo called it a "difficult question." The recent revelations didn't change the ACLU's concerns about the problem, he said, but merely confirmed them.

Abdo pointed to a 2008 push by then-Senator Obama to limit the ability of the government to collect domestic data. "It would have put significantly greater restrictions on the government's ability to look at Americans' communications if they were swept up," Abdo said. "That is the type of solution that is needed — something that puts a barrier between intelligence agencies and unrestricted access." At the very least, he said, "the government shouldn't have license to listen to any American's communications just because they talk to a foreigner." Which is the current standard — the NSA can eavesdrop only on those in communication with someone it believes is a foreigner. There's a lot of flexibility there, obviously.

While Abdo's was a stronger response than has been introduced in Congress so far, it's also somewhat more flexible than one might expect from the ACLU. Asked if the policy idea was an ideal or a practical consideration, Abdo noted that it was practical. Considering the ongoing, strong support for renewal of these policies in the Congress, practical revisions may be the most anyone can expect. Only 13 sitting senators voted against each of five key provisions expanding surveillance when given the opportunity, suggesting that a full repeal is highly unlikely. (Two of those senators, by the way: Paul and Wyden.)

What the judiciary can do

Part of the reason for that support, as various other senators made clear on Thursday, is a desire to grant the government the benefit of the doubt in drawing the line between civil liberties and the need to investigate and prevent terror attacks.

Which is where the judiciary is meant to come in, to help draw that line between what the government wants to do and what the Constitution says it can do. For the FBI or NSA to instantiate the collection of data, it needs sign off from the FISC, the Foreign Intelligence Surveillance Court. The FISC rarely says no.

But how it makes its decisions isn't clear. Last month, we detailed efforts by the Electronic Frontier Foundation to get more information about an incident in which the NSA admitted that it had violated the Fourth Amendment. In light of the new revelations, the organization suggested to The Verge that it now sees a judicial response as critical. It filed a lawsuit in 2006 in an attempt to discover how the government was working with AT&T to collect phone data.

"We’re waiting for the judge’s decision," [Cindy] Cohn told The Verge, noting that EFF would bring the recent Verizon surveillance order to the judge’s attention. "Hopefully the court will issue an injunction to stop the program." Even if that happens, surveillance won’t stop right away, as the US government will have a chance to appeal the ruling. "It may go all the way to the Supreme Court," Cohen said. "The American people deserve their day in court."

This is possible. It is possible that the EFF's petition for more data on the NSA's activity will be revealed; it is possible that a court fight over halting the government's efforts could result in the program being stopped and the judiciary finalizing where the line between security and privacy is drawn. It's possible. It's perhaps not likely.

What the executive branch can do

In that press conference, the president recognized that it's not clear where the line should be.

But Obama, more than anyone else in government, has the ability to draw that line on one side or the other. It is his Department of Justice that wants to surveil electronic data. It's his NSA that's cobbling together millions of phone records. By this time tomorrow, the President could conceivably curtail that activity.

As he also made clear in that press conference, he won't. He plans to continue to use surveillance tools instantiated under (and inviting unflattering comparison to) George W. Bush. For a second-term president, there's not much that public opprobrium can do. Those hoping Obama will act to reel in the government's behavior are left to rely on his changing his mind, which so far hasn't worked. Like the judiciary and Congress, Obama seems disinclined to do anything different.

There's one last refuge. Someone has invariably started petitions aimed at provoking a response from the administration. As of writing, 73 people have signed.

This article is from the archive of our partner The Wire.