Continuing the Discussion: Reactions to Snowden’s Leaks: Opportunities for Improved Privacy after the NSA

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ELIASZ KRAWCZUK
GUEST CONTRIBUTOR at SAIS WASHINGTON

The debate over NSA domestic surveillance has split people into two major groups: those who believe it is limited in nature and necessary for security and those who believe it is illegal and poses a risk to constitutionally protected rights. However, hidden in the folds of this crisis lies an opportunity to improve privacy protection for US citizens, address technological advances and protect personal freedoms.

Because of the NSA’s secretive nature and piecemeal leaks provided by Edward Snowden, knowledge of the surveillance and its uses are incomplete. President Obama correctly stated, “you can’t have one hundred percent security and also then have one hundred percent privacy and zero inconvenience.” Nonetheless, the system can be improved to better protect privacy.

Part of the issue is the lack of information on the topic. As metadata is gathered on US citizens, it is not yet clear that the FISA (Foreign Intelligence Surveillance Act) courts, which protect against illegal domestic surveillance by the NSA, can successfully restrict the use of the data to a constitutionally permissible manner. A FISA judge rebuked the NSA in 2011 for misleading the court over the extent of its surveillance on domestic soil. Although the US government has used this as an example of FISA oversight, the secretive nature of the courts does make it clear whether they are effective enough.

The lack of political ownership of the project is also failing to authenticate the domestic data collection as a critical part of national security. As allegations of improper surveillance arise, fingers are being pointed and scapegoats are sought.

Nonetheless, it has become clear that a select number of Congressional leaders were aware of NSA surveillance and two presidents – one Republican and one Democrat – have found the program necessary to protect Americans. If the surveillance is truly needed, then leaders should take assured ownership of the program. Kicking the issue around and allowing internal disagreements to show publicly limits the legitimacy of the program in the eyes of Americans.

Although there have been calls to eliminate current NSA surveillance programs, it is impossible to guarantee that these programs would not return in another form. It makes more sense to press for reform and regulation.

Moreover, the Obama administration should immediately pursue reform that would allow for stronger oversight and privacy protections. If the issue falls on the back burner, future events may cause even greater privacy problems beyond the control of the US government.

It is best to address the topic now when the debate is ongoing and a second-term US president sits in office. Furthermore, pursuing strong regulatory improvements for FISA court oversight and the extent of surveillance would be the most effective way to stymie the effects of any future leaks by Snowden.

Where power is unchecked, it has the potential to corrupt. Therefore, the improvement of privacy protection in NSA surveillance should focus on that key balance between power and oversight. As US leaders support the collection of domestic data to protect the lives and safety of Americans, they must also ensure that the power to surveil does not fall afoul of the Constitution’s Fourth Amendment, the protection against unreasonable searches.