The NSA Can't Be Trusted

flickr/Alex Ellison

On August 9, President Obama gave a news conference at which he defended his administration's record on surveillance while proposing some modest reforms. Predictably, it got mixed reviews from observers concerned about civil liberties. Less than a week later, The Washington Post published an important story about the National Security Agency (NSA) that makes it clear more reforms are necessary—and undermine Obama's defense of his record.

The key finding of the story, by Scott Wilson and Zachary Goldfarb: An internal audit found 2,776 "incidents" in which NSA surveillance breached rules between April 2011 and March 2012. Even worse, the rates of illegal "incidents" have been increasing. As the Post's Timothy Lee says, "We now know that President Obama’s assurances that the NSA wasn’t ‘actually abusing’ its surveillance programs are untrue." The only question is whether Obama deliberately misled the public, or whether he was unaware of these violations. Neither possibility is very encouraging.

There are two possible arguments about why these violations are not quite as bad as the raw numbers make them sound, one which has merit and one which doesn't. The fair counterpoint is that a majority of these violations were inadvertent, based on the inability of the software to detect when foreign cellphones were in fact located in the United States. (The warrantless monitoring of calls made solely on American soil is generally illegal; the Foreign Intelligence Surveillance Act (FISA) covers only communications with at least one foreign party.) Roughly 10 percent of the violations were the result of clerical errors that caused the wrong numbers to be searched. These violations were inadvertent, but that doesn't make them trivial—it's a failure that raises important questions about the ability of statutory restrictions to limit warrantless searches. However, it is true that a majority of the breaches do not seem to have been the result of willful legal violations of the law.

The second line of defense, however, is less persuasive. The NSA argues in the Post story that the violations need to be viewed in the context of the total number of searches conducted by the NSA:

“You can look at it as a percentage of our total activity that occurs each day,” he said. “You look at a number in absolute terms that looks big, and when you look at it in relative terms, it looks a little different.”

Viewing the violations in relative terms is relevant if we're evaluating the good faith of the agents within the NSA. In broader civil liberties terms, however, to focus on relative as opposed to absolute numbers is wrong. Precisely the problem with moving away from the typical requirement that searches and seizures require individualized suspicion is that the sheer scope of the NSA's searches increases the chances for violations of civil liberties. That the large number of violations occurred in the context of a huge number of searches is beside the point. The more searches, the greater the chances civil liberties violations will occur. Indeed, in this sense the fact that most of the errors seem to have been inadvertent is even more disturbing—if this number of violations can occur when agents are trying to follow the law in good faith, consider the dangers posed by NSA personnel who aren't acting in good faith.

Not all of these violations were minor, either. The NSA continued to use a broad search method that could not reliably distinguish between domestic and foreign communications for months before it was ruled unconstitutional by the FISA court. The optimistic way of looking at this story is to note that the system ultimately worked—normally a near-rubber stamp, the court properly exercised its oversight powers.

There's some truth to this, but this violation still raises some serious questions. It seems likely that the FISA court—which thanks to the unwise decision by Congress to confer the unilateral power to select FISA judges to the Chief Justice of the Supreme Court is dominated by conservative Republicans—is permitting the NSA to use techniques of questionable legality. The audit makes clear that the NSA is determined to push the legal envelope, and it's hard to view the FISA court as a reliable check on potential abuses. Indeed, the chief judge of the FISA court has said that his tribunal "does not have the capacity to investigate issues of noncompliance."

The leaked audit makes President Obama's reassurances about the NSA's surveillance regime ring hollower than ever. Above all, it compellingly shows the need for greater congressional oversight. It's never easy to be optimistic about Congress stepping up, but this important story will hopefully be a nudge in the right direction.

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