Privacy Advocates, Intelligence Officials Differ in Next Steps After Section 215 Ruled Not Lawful
Following Thursday's 2nd U.S. Circuit Court of Appeals ruling that the intelligence community’s bulk collection of metadata wasn't legal on statutory grounds (see 1505070041">1505070041), the question remains how to proceed and how transparent that community should be, said experts the next day. A “little sunshine can make quite a big difference in how these programs are evaluated,” said Patrick Toomey, American Civil Liberties Union National Security Project staff attorney, at a Sunlight Foundation event. Toomey represented the ACLU in its case against the government and said the government uses standing and state secrets rules to hide information.
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Rep. Suzan DelBene, D-Wash., hopes “proponents of a clean reauthorization of the Patriot Act will end their grandstanding and take note,” she said in a news release. “The court has affirmed what many of us already knew -- Congress never intended to allow bulk collection of Americans’ phone records, and the law does not permit it.”
The extent of NSA's and others' metadata acquisition was surprising, Penn State University law professor Rob Frieden told us. Every phone call -- wireline and wireless, domestic or international -- has metadata acquired, Frieden said, and the order states every American has standing to show they were harmed. It’s a very complicated case and the 2nd Circuit didn’t address the First and Fourth Amendment issues raised by the program, Frieden said. In effect, the court said Congress should amend the law to eliminate any uncertainty, he said.
Addressing Australia’s Progress 2015 in Melbourne via video from Moscow, former NSA contractor Edward Snowden applauded the ruling. “It is amazing what this court decision says because this is not a court that is seen as particularly partisan in the United States, this is one that seems very measured, very respected, and is probably the most respected appeals court circuit in the United States,” Snowden said. “For them to review the program and say that ... it's been violating our rights for 10 years, is significant,” he said.
Office of the Director of National Intelligence General Counsel Bob Litt said the intelligence community has learned to be more transparent to maintain support for its mission. If that community had been more transparent about the bulk collection metadata program before Snowden leaked the information, the program wouldn’t have been so controversial, Litt said. Though the intelligence community can be more transparent about procedures used to protect civil liberties and privacy, methods or sources used to gather intelligence must remain secret, Litt said. “Terrorists are looking at articles in newspapers and saying things like ‘stay away from X service because we know the NSA is on it,’” Litt said. There are “definite risks to transparency,” he said.
“You have to recognize some secrets are legitimate,” said Brennan Center for Justice Chief Counsel Fritz Schwarz Jr. Transparency about the broad program should be required, but details of how decisions are made on whom to target should be kept secret, Schwarz said.
The intelligence committees knew about the program, Litt said. He said that National Intelligence Director James Clapper didn’t lie under oath about the program because he sincerely forgot about Section 215 and thought Sen. Ron Wyden, D-Ore.'s questions were in regard to the Foreign Intelligence Surveillance Act Section 702. People make mistakes, Litt said, adding that as counsel for Clapper he should have written a letter to the committee to be included in the record changing Clapper’s testimony.
Previous versions of the USA Freedom Act provided transparency figures, such as the number of Americans affected by the metadata program, but they were stripped out of the current legislation, Toomey said. The FBI has also been given “extra exemptions,” Toomey said. Litt said his understanding was that while some transparency provisions had been taken out, others were strengthened. The cost of implementing the USA Freedom Act from 2016-2020 is $15 million, said a Congressional Budget Office report released Friday. That excludes the cost of classified programs. In response to concerns the intelligence community could hide a similar bulk collection program in a different statute, Litt said it’s not realistic. It would take a brave intelligence official to endorse recreating the bulk collection program and would require phone companies to cooperate, Litt said. “It’s not going to happen.”
Schwarz and Litt said the shelf life of a secret intelligence program is much shorter now. Toomey disagreed and said it was just revealed the Drug Enforcement Administration had its own bulk metadata collection program for 20 years and it’s still not clear what surveillance programs are authorized by executive order 12333, he said. USA Freedom should be debated in a public sphere, Toomey said. The 2nd Circuit didn’t issue a preliminary injunction, so the program is still authorized, Litt said. He added that he doubted the court’s ruling had any effect on the Foreign Intelligence Surveillance Court, just like a court in Iowa wouldn’t have to listen, he said.
The courts put the issue back in Congress’ lap, said Third Way National Security Program Director Mieke Eoyang. It’s unlikely a clean reauthorization would pass through the House, she said. Senate Majority Leader Mitch McConnell, R-Ky., has to decide whether to pass a bill like USA Freedom or let the program expire, Eoyang said. The Internet metadata program is completely separate from the telephone program, and that was intentional, Litt said. The NSA only uses technology in ways that is lawful and authorized by the FISA court, he said.