Debate Over NSA Surveillance Shifts with Judge's Ruling, Task Force Report

Critics of the agency's surveillance programs say momentum has shifted in the debate

Fri, December 20, 2013

IDG News Service (Washington, D.C., Bureau) — After six months of contentious debate over U.S. National Security Agency surveillance programs, prompted by leaks from former government contractor Edward Snowden, the third week in December may have marked a major turning point.

The NSA surveillance and data collection programs -- including the bulk collection of U.S. telephone records and surveillance of overseas Internet traffic -- have had their strong defenders, including President Barack Obama's administration and members of congressional intelligence oversight committees.

U.S. intelligence officials continue to insist the programs are legal and necessary, and that there's no better way to track terrorists than bulk collection of phone records.

But the NSA took two major hits this week. U.S. District Court Judge Richard Leon, in a preliminary ruling in a court case challenging the phone records collection, slammed the agency's efforts and suggested the program violates the U.S. Constitution's Fourth Amendment.

Leon's 68-page opinion amounted to a smack down of the NSA program. "I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware 'the abridgement of freedom of the people by the gradual and silent encroachments by those in power,' would be aghast," he wrote.

Two days later, the White House released a report from the Obama-appointed Review Group on Intelligence and Communications Technology that questioned the need for the collection of bulk telephone records.

Offering no less than 46 recommendations on how to change U.S. government surveillance programs, the report said that the telephone metadata collection program was "not essential to preventing attacks and could readily have been obtained in a timely manner using conventional ... orders."

U.S. surveillance programs create barriers to international commerce and sour the U.S. government's relationship with other countries, the report said. "Excessive surveillance and unjustified secrecy can threaten civil liberties, public trust, and the core processes of democratic self-government," the report said. "All parts of the government, including those that protect our national security, must be subject to the rule of law."

The review group's report was more measured than Leon's opinion, with no overt claim that the NSA programs violate the Fourth Amendment. But the panel also recommended that the phone records data be taken out of the NSA's hands, and for new restrictions on the ability of the U.S. Foreign Intelligence Surveillance Court to compel telecom carriers and other companies to disclose private information to the government.

Leon's decision, along with the review group's report, work together to create a huge change in momentum in the debate, said Greg Nojeim, senior counsel at the Center for Democracy and Technology, a digital rights group that's been critical of the NSA surveillance.

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