NSA may have adhered to legal rules, but legal rules can’t keep up with changes in surveillance technology

A year or two from now, when investigators have taken stock of all the revelations in the NSA records released by Edward Snowden, the verdict is likely to be that the exposed NSA surveillance activities were NOT unlawful.

That isn’t to say the NSA’s scarfing up of email and phone call metadata filling acres of computer servers in Utah wasn’t excessive, intrusive and objectionable. It was (and, to the extent ongoing, still is). But we are likely to conclude that the agency was fairly scrupulous in its adherence to legal boundaries, and that its overstepping was infrequent, mostly unintentional and, in any event, corrected by the FISA Court in subsequent oversight proceedings.

All this will reconfirm the truism that the legal system cannot possibly keep up with changes in technology. And the disconnect in time and relevance between the world of legal rules and the world of technology expands as the pace of technological change accelerates.

NSA’s bulk collection of data on Americans’ emails, phone calls and internet searches is grounded in Supreme Court decisions and federal statutes from over 25 years ago, when email was still a novelty, the internet was an experiment unknown to the general public, and Google’s and Facebook’s founders were in diapers. Fairly recent by the standards of legal institutions; ancient history by the standards of Silicon Valley.

The law, in other words, is not a meaningful or adequate regulator of what intelligence agencies may or may not do to protect the security of American citizens. Nor will it ever be. The judiciary is ill-equipped (to put it mildly) to anticipate the next generation(s) of communications technology and to fashion legal rules and doctrines accordingly. (Indeed, the Court, in deciding technology cases, typically looks backward, not forward). And no one who hasn’t been in a coma for the last five years could have the slightest hope that our dysfunctional Congress will provide guidance.

Still, NSA cannot be left to regulate itself. Its culture and mission cause it to exploit the full capacity of any available (and imaginable) surveillance technology. But if NSA can’t be reined in by the courts, Congress or the intelligence community itself, how will NSA be forced to sync its operations and capabilities to the reasonable expectations of the American public, mindful of the need to balance personal liberties and the imperatives of post 9/11 security?

The least bad of all answers may be transparency—transparency that allows the people to regulate NSA directly. Although transparency about intelligence matters is something of an oxymoron, Snowden’s leaking of NSA records, combined with the recent (and unprecedented) unsealing of FISA Court decisions and administration officials’ new-found candor about some surveillance policies, show that a high degree of openness–much higher than anything seen in the years before Snowden’s leaks–can be compatible with national security.

But can transparency be institutionalized in an agency that’s in the business of secrecy? Can NSA be made to understand that transparency is actually in its interest because the more the public knows, the more legitimacy the agency will have, the more leeway the public will give the agency?

Don’t hold your breath. —BY PETER SCHEER


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