Reconciling Privacy and Security Post-Snowden

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Cliff Owen / AP

Former Foreign Intelligence Surveillance Court Judge James Roberston, testifies in Washington, Tuesday, July 9, 2013, before the Privacy and Civil Liberties Oversight Board's workshop.

The Privacy and Civil Liberties Oversight Board, an independent federal agency examining whether U.S. intelligence gathering is too intrusive, held a public workshop on Tuesday in Washington with experts, academics and advocacy organizations. The purpose: to respond to revelations of the government’s controversial collection of phone and Internet records, and to recommend what, if any, changes should be made.

Suggestions ranged from creating an adversary in the secret court established by the Foreign Intelligence Surveillance Act (FISA) to creating a firewall so evidence collected during national security investigations can’t be used to prosecute lesser crimes, like tax evasion or fraud.

Sharon Bradford Franklin, Senior Counsel at the Constitution Project, proposed that the government tighten standards for when information can be collected in the first place.

“It’s very important that we have strict rules to require a sufficient connection to terrorism before this information is collected,” Franklin said. “The sheer fact that it is useful to the government for counterterrorism cannot possibly comply with Fourth Amendment standards, and it’s not the kind of society that we live in.”

James Robertson, a retired U.S. District judge who previously served on the Foreign Intelligence Surveillance Court, suggested making the FISA court less one-sided.

“Anyone who has been a judge will tell you a judge needs to hear both sides of a case before deciding,” Robertson said. “Judging is choosing between adversaries.”

Robertson recommended that the process include an adversary, such as the American Civil Liberties Union, Amnesty International, or even the Privacy and Civil Liberties Oversight Board itself, to challenge the government and take the opposing side. He noted that the court “has turned into something like an administrative agency,” and needs someone to represent individuals who are being unknowingly surveilled in order to restore judicial balance.

However, Robertson dismissed the notion that the FISA court was a mere “rubber stamp” institution, adding that he was “deeply impressed by the careful, scrupulous, even fastidious work” of everyone involved.

Steven Bradbury, the former head of the Justice Department’s Office of Legal Counsel under President George W. Bush, thought Robertson’s proposal was far-fetched. A legal adversary would have to know all of the classified details of each case, Bradbury said, which would be problematic.

“In this context, we’re talking about doing surveillance of the most sensitive threats based on the most sensitive national security information,” Bradbury said. He added that the only way a legal adversary could fully participate in the process was if the role was played by an officer of the government.

Other experts called for Congress to clearly authorize government surveillance, so that National Security Administration programs can have a steadier legal footing.

“I think it’s important for Congress not to hide elephants in mouse holes,” said Nathan Sales, a George Mason University School of Law professor who previously served as the Department of Homeland Security’s Deputy Assistant Secretary for Policy Development. “If we’re going to have a system that authorizes bulk data collection, it should be approved transparently and expressly.”

Sales also recommended that further safeguards be put in place to restrict who can access surveillance data once it has been collected. He expressed fears that this data could be used to go after tax cheats, and proposed the creation of firewalls to prevent such information from bleeding over into more routine investigations.

Many panelists felt that transparency would help restore public confidence in government surveillance. These experts suggested unveiling some of the decisions that happen behind closed doors, such as releasing the FISA court’s significant opinions to the public.

“My view is that some of the programs that have been disclosed over the last few weeks and the last few years should never have been secret in the first place,” said Jameel Jaffer, the Director of the ACLU’s Center for Democracy. “They should have been disclosed to the public, at least the general parameters of the program.”

However, not all of the panelists were eager to make major changes to U.S. intelligence efforts.

Kenneth Wainstein, the former Homeland Security Advisor under the Bush administration, cautioned against going too far in sacrificing national security at the expense of privacy. Instead of scaling back the country’s surveillance programs, Wainstein said, the board should advise the White House and Congress to build in safeguards that will prevent abuse.

“What I find concerning is the notion that if you have a strong, but lawful and appropriate investigative tool in place now, that you should think twice about maintaining it because of some speculative concern that down the road it could be misused,” Wainstein said. “I think if we were to take that approach, we’ll end up walking right back into another 9/11.”