Na­tional Se­cu­rity Agency bill barely touches the or­ga­ni­za­tion’s vast pow­ers


The sur­veil­lance law en­acted this week stands as the most sig­nif­i­cant curb on the U.S. gov­ern­ment’s in­ves­tiga­tive au­thor­i­ties since the 1970s. But it’s prac­ti­cally in­con­se­quen­tial in the uni­verse of the Na­tional Se­cu­rity Agency’s vast dig­i­tal spy­ing op­er­a­tions, a tech­ni­cal over­haul of a mar­ginal coun­tert­er­ror­ism pro­gram that some NSA of­fi­cials wanted to jet­ti­son any­way.

Af­ter a six-month tran­si­tion, the new law will end the NSA’s bulk col­lec­tion of Amer­i­cans’ phone records, mov­ing in­stead to a sys­tem of case-by-case searches of records held by phone com­pa­nies.

The ex­is­tence of the pro­gram, in place since shortly af­ter the at­tacks of Sept. 11, 2001, was per­haps the most star­tling se­cret re­vealed by for­mer NSA con­trac­tor Ed­ward Snow­den, be­cause it so di­rectly af­fected the pri­vacy of Amer­i­cans. It was the first Snow­den dis­clo­sure pub­lished by the jour­nal­ists with whom he shared doc­u­ments, and it landed with a thun­der­clap.

But in the two years since Snow­den took up ex­ile in Rus­sia to avoid pros­e­cu­tion in the U.S., his doc­u­ments have fu­eled dozens of rev­e­la­tions of NSA sur­veil­lance op­er­a­tions, dis­clos­ing how the agency seeks to ex­ploit In­ter­net com­mu­ni­ca­tions. None of those pro­grams are af­fected by the law Pres­i­dent Barack Obama signed Tues­day night.

Most of the Snow­den dis­clo­sures have shed light on the NSA’s ba­sic mission of gath­er­ing for­eign “sig­nals in­tel­li­gence,” but the way the agency does its job in the In­ter­net age by ne­ces­sity in­volves ex­ploit­ing weak­nesses in the same tech­nol­ogy the rest of us use. And it also means the NSA “in­ad­ver­tently” col­lects the con­tent of a lot of Amer­i­can com­mu­ni­ca­tions. Ex­actly how much is un­known and per­haps un­know­able. But the gov­ern­ment is al­lowed un­der cer­tain cir­cum­stances to search that data, none of which was ob­tained with a spe­cific, in­di­vid­ual war­rant.

And Snow­den has not been the only source of dis­clo­sures about gov­ern­ment sur­veil­lance.

Fierce Op­po­si­tion for Han­dling

Pri­vate Data

This week, The As­so­ci­ated Press re­ported that the FBI has been fly­ing spy planes over Amer­i­can cities. And in Jan­uary, the Drug En­force­ment Ad­min­is­tra­tion for­mally ac­knowl­edged that it main­tained a sweep­ing data­base of phone calls made from the U.S. to for­eign coun­tries, a pro­gram it dis­con­tin­ued in 2013. It is un­clear ex­actly how the in­for­ma­tion col­lected in those ef­forts has been used.

Some mem­bers of Congress have ex­pressed fierce op­po­si­tion to the way the in­tel­li­gence com­mu­nity cur­rently han­dles the pri­vate data it col­lects on Amer­i­cans, es­pe­cially the pri­vate in­for­ma­tion col­lected from U. S. tech­nol­ogy com­pa­nies un­der the PRISM pro­gram, also re­vealed by Snow­den.

But ef­forts to ad­dress that is­sue in this week’s USA Free­dom Act went nowhere — be­cause they had no chance of pass­ing. Un­like the phone records pro­gram, the PRISM col­lec­tion has proven in­stru­men­tal in foil­ing ter­ror­ist plots, and law­mak­ers are loath to tin­ker with it. The Obama ad­min­is­tra­tion ear­lier this year tight­ened some rules on how data on Amer­i­cans is han­dled, but re­jected more rig­or­ous pro­ce­dures rec­om­mended by a pres­i­den­tial task force on sur­veil­lance.

NSA lead­ers, mean­while, are shed­ding few tears over los­ing the author­ity to col­lect Amer­i­cans’ phone records, for­mer of­fi­cials say. In­de­pen­dent re­views of the pro­gram found that it wasn’t a crit­i­cal tool, and for­mer NSA of­fi­cials re­vealed that some in­side the agency had wanted to aban­don it. The only rea­son the NSA didn’t pro­pose keep­ing the records with the phone com­pa­nies years ago, for­mer Direc­tor Keith Alexander has said, is that no one wanted to seek leg­is­la­tion from Congress while the pro­gram re­mained a se­cret.

Searches of phone com­pany records un­der the USA Free­dom Act may not work as swiftly as the cur­rent sys­tem, but the NSA will also gain ac­cess to mo­bile phone records it doesn’t now col­lect un­der the pro­gram.

In­deed, he and other an­a­lysts said, other fall­out from the Snow­den leaks has played a stronger role in hem­ming in the NSA than any­thing Congress has done. The Obama ad­min­is­tra­tion curbed some for­eign sur­veil­lance; for­eign gov­ern­ments and tech­nol­ogy com­pa­nies are less ea­ger to co­op­er­ate, and Ap­ple and Google have be­gun en­crypt­ing mo­bile data, mak­ing it more dif­fi­cult for gov­ern­ments to eaves­drop.

Among those who agree with a mod­est ap­praisal of the USA Free­dom Act are pri­vacy ac­tivists. While call­ing it land­mark leg­is­la­tion, they also lament its lim­its.

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