This afternoon the White House released the report of a panel it had convened back in August to review the country's surveillance system.
Within the 300-page report are 46 recommendations that would dramatically curtail the National Security Agency's surveillance powers. While the proposals are specific and varied, they all echo one theme: The government's reach can no longer be limited by technological capacity alone. It must be reined in with laws and institutional reform.
For example, NSA currently stores metadata relating to call records. The report urges Congress to "end such storage" (i.e., make a law prohibiting it) and "transition to a system in which such metadata is held privately for the government to query when necessary for national security purposes."
The report also recommends certain institutional reforms, such as the creation (by Congress) of a position of "Public Interest Advocate," a person who would represent the public before the FISC.
Furthermore, the report says that the government should not interfere with people's attempts to encrypt their communications, saying instead that the government should
take additional steps to promote security, by (1) fully supporting and not undermining efforts to create encryption standards; (2) making clear that it will not in any way subvert, undermine, weaken, or make vulnerable generally available commercial encryption; and (3) supporting efforts to encourage the greater use of encryption technology for data in transit, at rest, in the cloud, and in storage. Among other measures relevant to the Internet, the US Government should also support international norms or agreements to increase confidence in the security of online communications.
Again, it is the same theme: Just because you are capable of something doesn't mean you should be doing it. Such steps would all place constraints—institutional and legal ones, not technological ones—on the government's surveillance practices. That is the essence of law: It is a system for allowing less than what is possible.
As Ben Wizner, Edward Snowden's lawyer, wrote to me over email, “Snowden’s revelations showed the world what some of us had long worried about: that surveillance practices are being driven by technological capabilities, rather than being constrained by laws and values. We’re finally having the normative debate that we should have had before the NSA deployed its global dragnet.”
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