So, if I could basically accept gathering all meta-data in one place provided it was not under the control of the NSA or anyone else who could look at it, provided that looking at it required a court order and some degree of particularized suspicion, provided that adequate minimization procedures were employed to ensure that innocent data was not retained, and finally, provided that warrants were narrow enough to keep agents on a reasonably tight leash, why am I still leery about passing a law to allow it?
Basically, because the NSA's past behavior does not exactly inspire confidence. It has regularly either broken the law or stretched it so far as to make it meaningless and, when caught, declared that its actions were necessary for our security and gotten Congress to expand its powers. Once legislation expanding its powers was passed, it then either broke the new law or stretched it so far as to make it meaningless. Before I take another turn in this cycle, I want some sort of assurance that it will be the last one. And I don't want the new law simply to expand the NSA's powers to allow it to do all the questionable things it has been doing anyhow. I want the basic structure out in the open, even if, of course, the operational details must be kept secret. If having a collection of all meta-data is necessary, I want it authorized by law, not done by an absurd interpretation of an existing statute. I want it stored somewhere that neither the NSA nor any other law enforcement agency can access without a proper court order. I want a date after which the information must be destroyed. I want the court order held to standards that are not so vague as to be meaningless.
More than that, if we are going to grant the NSA this expansion in this power, I want it counterbalanced with some real restraints. Two have been suggested. The Supreme Court has never ruled on it, but several federal circuits, and the FISA court, have held that the Fourth Amendment does not apply to foreign intelligence. This means that there is no constitutional restrain on the executive branch's power to engage in foreign intelligence surveillance; the only constraints are the ones in the FISA statute. It is a normal and routine feature of our legal system that the courts make legally binding interpretations of statutes. Often a short and sparse statute may be little more than a skeleton, with the courts fleshing out these bare bones. (One of the reasons so many statutes run to hundreds of pages these days is to limit the courts' latitude). Court interpretation of statutes are on the public record, and if Congress does not like how a court has interpreted a statute, it may amend it. FISA is a notable exception. The FISA court works in secrecy. Only two cases under FISA have ever been appealed. The first one held that the FISA court may not build a "wall" between intelligence gathering and prosecution, and may not forbid law enforcement from participating in FISA surveillance. The other case rules that (1) communications companies have standing to appeal orders they consider unjust; (2) the Fourth Amendment does not apply to foreign intelligence; and (3) targeting a US person outside the United States did not require particularity to be reasonable. (What this last part means is somewhat vague in the absence of facts). Many people have suggested that, although operational details and routine matters should be kept secret, any legally significant interpretations of FISA by the lower FISA court should be published. It has also been suggested that, since obviously the target of surveillance cannot be warned and allowed to appeal, communications companies should be given that right, expressly. I favor both of these, along with more narrowing and particularity in what a FISA wiretap can do.
In short, before I listen to people saying we just have to expand the NSA's powers to do what they have already been doing, I want some assurance that it will finally stop here, and some institutional teeth build in.
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