The NSA Can’t Follow Its Own Rules

Barton Gellman reports that the NSA breaks its privacy rules thousands of times annually. The headline had me aghast – but the actual details? Not so much. The privacy rules seem to have been violated because of technical, not human, reasons. Mistaking the phone code “20” for “202” (Egypt vs DC) is not a sign of anyone’s deliberate abuse of the law. But it does emphatically reveal the risks and potential abuse involved in this massive collection of data. And it does show that this behemoth has slipped past any meaningful oversight. The lesson Marc Tracy draws from this latest, damning detail of the NSA program’s inherent threat to privacy:

There is a valuable, vital debate to be had over how much the federal government, in its intelligence programs, ought to be permitted to violate Americans’ privacy in an effort to protect Americans from a dangerous world that includes people who want to kill Americans. There are many different places where the important red lines can be drawn in this debate. It is a debate strewn with well-intentioned, conscientious people who would draw those lines at very different places. Let’s even be generous and stipulate that the question of whether the statutorily provided oversight of these programs belongs, as well, to that debate.

The terrifying thing is that we are not having that debate.

As these documents are the latest things to demonstrate, the various overseers as well as the public do not have access to the information that even the current rules assert they should have. That is how I can state with certainty that we are not having that vital debate: We do not have the means to have that debate with any kind of authority; therefore, no matter how much we discuss these issues, we are not having that debate.

Ezra Klein adds:

In a companion story today, the chief judge of the U.S. surveillance courts made clear how much he doesn’t know, telling the Washington Post that “The FISC is forced to rely upon the accuracy of the information that is provided to the Court. The FISC does not have the capacity to investigate issues of noncompliance, and in that respect the FISC is in the same position as any other court when it comes to enforcing [government] compliance with its orders.”

This is the reality of the NSA spying programs: Aside from Snowden’s leaks, we only know what the government is telling us. Of course, that’s always the case with intelligence operations. What’s scarier is that the oversight bodies only know what the government is telling them, too.

Friedersdorf calls for a new Church Committee:

Note that the 2,776 incidents of illegal surveillance don’t mean that just 2,766 people had their rights violated — rather, in just a single one of those 2,776 incidents, 3,000 people had their rights violated. As the story notes, “There is no reliable way to calculate from the number of recorded compliance issues how many Americans have had their communications improperly collected, stored or distributed by the NSA.” And that is another reason that an intrusive Congressional investigation into these practices is urgently needed.