Beware the business-as-usual brigade's efforts to sabotage new NSA oversight

Now is the time for Americans to demand safeguards to liberty, for the enemies of surveillance reform are out to thwart us

Ron Wyden

A good way to measure the credibility of scholars and thinkers in Washington is by watching to see whether they stay true to their views regardless of the impact that their views have on partisan politics. That's why Cato scholars like Jim Harper and Julian Sanchez are go-to leaders on the issues of security and liberty. Big thanks for inviting me today.

This conference could not be more timely. The Senate intelligence committee will soon be marking up a new surveillance bill, and the House and Senate judiciary committees are working on legislation, as well. Two weeks ago, a bipartisan group of senators – myself included – kicked off this debate by introducing the first comprehensive surveillance reform bill to follow the June disclosures. Our legislation would end the bulk collection of Americans' records, close the backdoor searches loophole that allows Americans' communications to be reviewed without a warrant, make the Fisa court operate more like a court worthy of the United States, and expand the ability of our citizens to have their grievances heard in federal courts.

I know these issues will be discussed here today, so I'll start with my bottom line: the goal of our bipartisan bill is to set the bar for measuring meaningful intelligence reform. We wanted to put this marker down early because we know in the months ahead we will be up against a "business-as-usual brigade" – made up of influential members of the government's intelligence leadership, their allies in thinktanks and academia, retired government officials, and sympathetic legislators. Their game plan? Try mightily to fog up the surveillance debate and convince the Congress and the public that the real problem here is not overly intrusive, constitutionally flawed domestic surveillance, but sensationalistic media reporting. Their end game is ensuring that any surveillance reforms are only skin-deep.

Some of the "business as usual" arguments have something of an Alice in Wonderland flavor. We have heard that surveillance of Americans' phone records, aka metadata, is not actually surveillance at all – it's simply the collection of bits of information. We've been told that falsehoods aren't falsehoods – they are simply imprecise statements. We've been told that rules that have been repeatedly broken are a valuable check on government overreach. And we've been told that codifying secret surveillance laws and making them public surveillance laws is the same as actually reforming these overreaching surveillance programs. It's not.

These arguments, of course, leave the public with a distorted picture of what their government is actually up to. Those tiny bits of information, when put together, paint an illuminating picture of what the private lives of law-abiding Americans are like. Erroneous statements that are made on the public record but never corrected mislead the public and often members of Congress, as well. Privacy protections that don't actually protect privacy are not worth the paper they are printed on; and just because intelligence officials say that a particular program helps catch terrorists doesn't make it true.

This is some of the peculiar logic – like the false choice between security and liberty – that I expect the business-as-usual brigade will continue to rely on as they defend the status quo. Here's more of the specifics that will come from their corner.

While I am encouraged that the president has said that he supports the creation of an independent advocate to argue cases before the Fisa court, I expect the intelligence leadership to argue for limiting the advocate's mandate and resources. They will most likely propose that the advocate should only be allowed to argue cases at the request of Fisa court judges, and that he or she should not be allowed to appeal cases or assist private companies and individuals that want to challenge overly broad surveillance orders. The reality is that if this position is created without the mandate and resources needed for real oversight, it will be nothing but cover for business as usual.

The executive branch has also begun declassifying information about domestic surveillance authorities and activities in response to disclosures by the news media and lawsuits filed under the Freedom of Information Act. I expect that to continue. But when it comes to greater transparency and openness, the executive branch has shown little interest in lasting reforms that would actually make the intelligence community more open and transparent, and executive branch officials will probably resist any attempts to mandate greater transparency.

This is unfortunate. Requiring the government to be more open about the official interpretation of the law is critical. It's the only way that American citizens can decide whether or not laws need to be changed.

I also expect the defenders of the status quo to attempt to codify the surveillance authorities that reformers want to repeal. From a privacy and liberty perspective, this is a truly dangerous proposition. Here's why.

The defenders of the status quo say that with these bulk phone records, the government may be collecting lots and lots of data on innocent Americans, but no one should worry because they have rules about who gets to look at it and when. There are multiple, serious problems with this "trust us" argument.

No 1, when the Founding Fathers wrote the fourth amendment, they didn't say:

It's OK to issue general warrants, as long as you have rules for when you're allowed to look at the papers you seize.

The Founders said that the government should only be allowed to obtain someone's private papers and effects if they have evidence that the person is involved in a crime or other nefarious activity. And the reason they said that is that collecting private information about people has an impact on their privacy whether you actually look at it or not.

No 2, none of these rules involve individual review by a judge. If the NSAdecides that it wants to look through the bulk phone records database or conduct a backdoor search for a particular American's emails, it can do so without getting the approval of anyone outside the NSA. So I'd argue that there aren't enough independent checks on the government's authority.

For No 3, I'll go back to looking at the intelligence agencies' track record. These rules have been broken … a lot. In 2009, the Fisa court itself ruled that, and I quote:

The minimization procedures proposed by the government in each successive application and approved as binding by the orders of [the Fisa court] have been so frequently and systematically violated that it can fairly be said that this critical element of the overall [business records] regime has never functioned effectively.

What does that legal jargon mean? That's legalese for a serious smackdown of the government by the court. Even if these rules were somehow written in a way that totally erased the privacy impact of bulk records collection – which I don't think is possible – the fact is that the routine violations of these rules over the years clearly demonstrate that trying to rely on them is a flawed approach.

So, the defenders of the status quo will argue that the best way to protect Americans' rights is to codify these rules into law, and maybe tweak them a little bit around the edges. This would be a huge mistake. Codifying the rules for bulk phone records collection into law will just make the bulk phone records program more permanent. And putting a congressional imprimatur on invading the rights of law-abiding Americans is a mistake that Congress would regret.

In particular, it makes it easier for the executive branch to use the Patriot Act to collect other types of records in bulk in the future. This could include medical records, financial records, library records, firearm records … you name it. The executive branch has refused to rule out using the Patriot Act to collect these records, so any of them could be up for grabs. If the rules for bulk phone records collection are written into law, it will be easier to argue that the use of the Patriot Act for bulk collection was deliberately authorized by the elected representatives of the American people. Codifying the bulk collection program into law and ushering in a new era of digital surveillance would normalize over-broad authorities that were once unthinkable in America.

Now, defenders of business as usual were clearly hoping that public outrage about these programs would fade, once the details about them were better understood. But the exact opposite has happened. The more information people learn about these programs, the less they like them. The polls show that public opinion has moved significantly in the pro-reform direction since the initial disclosures about these programs were first made in June. The fact is that most Americans think that their government should protect both American security and American liberty – and a lot of people can now see that their constitutional liberties have not been adequately protected.

As a result of this groundswell of public opinion, members of Congress have begun proposing ideas for reforms. Like most successful reform efforts, this one has had three phases. The first phase was in the immediate aftermath of the June disclosures, when a number of members of Congress reintroduced legislation that they had proposed in the past and that seemed newly relevant in the wake of these new surveillance disclosures.

I was among them, offering my bill with Senator Udall to end bulk collection. The second phase unfolded over the following months as additional members started to develop new ideas, like reforming the Fisa court or allowing private companies to disclose more information about their co-operation with the government. The third phase is beginning now, as members of Congress are looking to take the best ideas on the important issue and meld them into a comprehensive reform effort. This is what Senators Udall, Paul, and Blumenthal, have proposed. And Chairman Patrick Leahy is working on a promising package in the judiciary committee.

So, the reformers are in a better position, but we know the challenge of setting the bar for meaningful reform. We know that the defenders of business as usual are adopting the language of reform, but continuing to argue that Congress should only make very small changes, rather than big, meaningful ones.

I wish I had a nickel for every time that I heard a senior official say that their agency is "open to considering" a particular change in the law. The reality is that the intelligence leadership will talk about the need to make changes and restore public confidence, but behind the scenes, they will double down to preserve their existing authorities.

The intelligence leadership will pull out all the stops to oppose any changes that would actually rein in any of this overly broad surveillance of American citizens. Count on it.

But the effects of constitutionally flawed, overly intrusive surveillance programs go beyond the intrusion on Americans' privacy. American companies that are believed to have been the subject of government surveillance orders are taking a major hit internationally and here at home. This is a serious economic issue. We live in a global marketplace and American digital companies compete on a global playing field to a degree that was unheard of ten years ago. If they start to lose ground to foreign competition, it will put tens of thousands of high paying jobs at serious risk.

If a foreign enemy were doing this much damage to our economy, people would be out in the street with pitchforks. These companies are now filing lawsuits to force the government to allow them to release more information about how many surveillance orders they have received, in an attempt to repair some of the damage that has been caused.

Just within the last week, I was talking to a company president from one of America's leading digital service companies, and the first thing this executive said to me was what a big impact this unchecked domestic surveillance was having on that company. To be fair, I don't expect NSA officials to spend their time thinking about the economic impact that unrestrained surveillance can have, but the policymakers who sign off on these over-broad surveillance programs should absolutely be thinking about the impact that these programs can have on American jobs, and on trust for American companies around the world.

One final take on the business-as-usual brigade is they will argue vociferously that any intelligence agency employee who is alarmed about surveillance activities that may be illegal, harmful or ineffective already has plenty of avenues for raising concerns. The reality is that even if an employee had a reason to think that raising concerns through official channels would do some good, the fact is that the whistleblower laws are deeply flawed; it doesn't make much sense to speak up if you have to take your complaint to the people you're complaining about. Last year, the Senate passed a bill that would have protected intelligence agency employees who raise such concerns from retaliation, but unfortunately, that bill died in the House of Representatives. Congress needs to pass this law, to ensure that intelligence whistleblowers have the protections that they deserve.

So, what you're going to see in the coming weeks and months is a spirited debate between advocates of real, meaningful, lasting surveillance reform and defenders of the status quo, who will argue for minor changes to the law and who may even try to use this opportunity to expand domestic surveillance authorities. I'll take a moment now to lay out the reform legislation that I and a bipartisan group of senators introduced two weeks ago, so that you have a clearer sense of what I think meaningful reform should look like.

First and foremost, meaningful reform should end the bulk collection of Americans' records. A Fisa court order that that allows the NSA to collect the records of huge numbers of ordinary Americans with no connection to nefarious activity is exactly the sort of "general warrant" that our Founding Fathers sought to prevent when they wrote the fourth amendment. Even worse, the NSA can't even demonstrate that this bulk collection has provided any real value.

Back in June, intelligence officials kept suggesting that bulk phone records collection had helped in 54 terrorism investigations. But that number could not hold up under any real scrutiny. It keeps getting lower and lower – the last time I checked, it was down to one or two cases in the last six years.

Moreover, in actual emergency situations, the law already allows the government to get phone records immediately and then get court approval after the fact. And the reform bill that our bipartisan group introduced two weeks ago would make this authority even clearer and stronger. It wouldn't be unreasonable to ask why intelligence agencies need bulk collection if they have these authorities. I don't know; and after two years of questioning, I haven't gotten an answer from the NSA, either.

Intelligence officials say that they think the bulk phone records program is important. But their track record here should make anyone skeptical. Until 2011, the NSA also ran a bulk email records program under the authority of the Patriot Act, and intelligence officials spent years telling both Congress and the Fisa court that this program was vital to US counterterrorism efforts. The only problem with that statement is that it wasn't true. It wasn't true at all. Senator Udall and I spent most of 2011 pressing the NSA to provide actual examples of the bulk email records program's effectiveness, but NSA officials were unable to do so.

The bulk email records program was shut down that year. It was a big win for supporters of privacy and constitutional liberties, even though Senator Udall and I weren't able to discuss it publicly until two years later.

This experience also demonstrated the importance of forcing intelligence officials to actually provide evidence to back up their statements, the way other government officials are expected to do. Too often, intelligence agency heads are able to just come up to Capitol Hill and insist that they need particular programs or authorities, without being pressed to actually justify these requests the way they would if they were representing any other department in the executive branch. And too often, these agencies are allowed to use their mandate for secrecy as a convenient excuse to avoid answering questions.

I spent much of 2012 asking the NSA and the DNI [Director of National Intelligence] whether anyone had done an estimate of how many American communications had been collected under section 702. The ODNI and the NSA insisted that such an estimate was impossible, but what they failed to tell the public was that the Fisa court had already done one.

I can attest that our nation's intelligence professionals are overwhelmingly dedicated and patriotic men and women who make real sacrifices to help keep our country safe and strong. And I believe that they should be able to do their jobs confident in the knowledge that they have the support and trust of the American people.

Unfortunately, the leadership of these agencies has pushed hard over the years for overly intrusive domestic surveillance programs that are of no clear value. They have compounded the problem by continually making misleading statements about their agencies' authorities and activities. Restoring public confidence is going to take time, and the way to start is by reforming surveillance law and ending bulk collection on ordinary Americans.

Ending bulk collection is only the beginning. I believe that meaningful surveillance reform also needs to reform section 702 of Fisa. Congress intended for section 702 to be used to target foreigners, but as the FISC pointed out in a recently declassified court document, tens of thousands of wholly domestic communications have been swept up in that collection.

This is what the Fisa court called a violation of the "spirit of the law". I'll say it is.

Due to a quirk in the wording of the law, the court also said it was perfectly legal. Think about that for a minute. An interpretation of a law meant to target foreigners, that collects tens of thousands of Americans' domestic communications in violation of what the law and the constitution are meant to allow … and the court says it is legal on a technicality? Does that sound right to you?

This becomes all the more problematic when you consider that the law does not require the intelligence agencies to get a warrant before searching through communications collected under section 702 to find the communications of individual Americans. This is what I call the "backdoor searches loophole". In my judgment, such searches would clearly represent an end-run around the privacy protections in the bill of rights. Intelligence officials have actively sought the authority to conduct these backdoor searches, and have declined to say publicly whether any have ever been carried out. I believe that Congress needs to slam this backdoor tight and nail it shut.

Finally, I believe that Congress needs to create an independent advocate to argue against the government in significant cases before the Fisa court. Right now, when the Fisa court considers a major question of law, like whether the Patriot Act permits the dragnet surveillance of innocent Americans, the court only hears the government's side of the argument. That's not unusual if a court is considering a routine warrant application, but it's very unusual – and more than a little troubling – when a court is considering major legal or constitutional questions. It's time to overhaul this anachronistic, one-sided process and ensure that when the court is asked to decide what the law or the constitution means it hears both sides of the argument.

And then the court's major opinions should be redacted and released, so that all members of the American public have an opportunity to understand how their laws and constitution are actually being interpreted. Executive branch officials spent the last several years making misleading statements about domestic surveillance to both Congress and the American people, and that should never be allowed to happen again.

I'll close with a few last words all about what it takes to win the battle for real reform. The vote on the Amash-Conyers amendment in the House of Representatives shows that there is strong support for reform on both sides of the aisle in Congress. But those who would fight for the status quo genuinely believe that their way is best, and they will come at us with everything they've got.

Winning this fight won't be glamorous. It certainly hasn't been over the last few years of painstaking work, which was often lonely and dispiriting. For example, we worked hard to get a few short lines of a secret court opinion declassified because we knew that once we started pulling out the threads, eventually the whole secret law edifice would start to unravel. That's exactly what happened when the Electronic Frontier Foundation filed their lawsuit and managed to get that entire secret court opinion, which detailed a serious constitutional violation, declassified and released to the public.

I've been in tough battles before, when it looked like the odds were insurmountable. Like back in 2010, when we put a hold on the anti-internet freedom legislation that became the infamous Sopa and Pipa bills that went down after millions of Americans spoke out against a Senate vote that would have lifted my public hold on internet-damaging legislation.

As it did then, it's going to take grassroots support from lots of Americans across the political spectrum who let their members of Congress know that they want both their security and their liberty to be protected, and that "business as usual" is no longer OK. The key parts of this debate are going to take place over the next several weeks as debate moves forward in the House and Senate. Different bills will be brought forward and the leadership in each chamber will assess which bills have enough support to be brought to the floor.

So, for the millions of law-abiding Americans who care about protecting both American security and the values that the framers of our constitution fought for, the time for action is now. For those millions of Americans, reformers will be there when asked "how can I help?"

• This article is based on remarks delivered at a Cato Institute event on 9 October

http://www.theguardian.com/commentisfree/2013/oct/09/beware-sabotage-nsa-oversight