international analysis and commentary

How proponents of NSA’s digital surveillance have won – for now

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The December 9th release of the so-called “Torture Report” by the Senate Intelligence Committee is bound to influence, if only indirectly, the ongoing debate over the reform of the National Security Agency. The Report reveals that the Central Intelligence Agency displayed even greater levels of willful abuse, deception and mismanagement in its treatment of terrorist suspects than previously known, and casts ever-growing shadows on the actions of the US’s intelligence community.

Already, November 18th was set to be a “do or die” moment for American spy agencies. On that day the Senate voted on a Bill that Senate Majority Leader Harry Reid, the Democratic Senator from Nevada, was hoping would bring about the long-awaited reform of the NSA, whose digital mass surveillance program came under fire after the revelations by NSA-subcontractor Edward Snowden. The most important and controversial parts of the Bill, ambitiously called the USA Freedom Act, were provisions to restrict the NSA’s ability to gather digital data. For instance, had the Bill been adopted, it would have put a stop to the bulk collection of US domestic phone records, forcing the NSA to file specific requests for information instead. Additionally, the Bill recommended the introduction of so-called advocates, who could argue in court against the government. Currently, the Foreign Intelligence Surveillance Court (FISC), which grants or dismisses government requests for surveillance warrants, only hears the case made by the government, and there is no one to argue the other side. The role of advocates would have been to fill that gap and to make sure that a real discussion took place.

However, the Bill was shot down, as only 58 Senators, two short of the 60 necessary to override a filibuster, supported it. Predictably, many of the Bill’s opponents cited the increased terrorist threat, especially from the Islamic State, as a reason to block the USA Freedom Act. As Republican Senator Susan Collins put it with more than a touch of pathos, “Why would we weaken the ability of our intelligence community at a time when the threats against this country have never been greater?” Other prominent Senators, including Republican John McCain of Arizona and Democrat Dianne Feinstein of California, who chairs Senate Select Committee on Intelligence, opposed the Bill on similar grounds, claiming that the recent emergence of new threats to US national security makes it inopportune to reign in the NSA.

But while such claims may resonate well among the US electorate, which tends to be hard on people considered “soft on terror”, the available evidence suggests that digital mass surveillance has so far contributed little to nothing to US national security. Contrary to what is often believed, we know how terrorist plots are foiled, and it is clear that more traditional intelligence and policing methods play a much bigger role in preventing them than digital mass surveillance.

In order to discover terrorist plots, the NSA draws up profiles that can be used to single out individuals of interest for further examination. They identify people who, for instance, use suspicious words or terms in their e-mails, send encrypted messages, and search for information on how to make explosives. This sounds like a practical way to make sense of vast amounts of data, but searches using such profiles return almost exclusively “false positives”, that is, people who meet the profile but are not guilty of any wrongdoings. For example, for a short while after 9/11, the German police tried to identify Al-Qaeda sleeper cells through profile searches, but the only search results they got pointed them in the direction of innocent civilians. As for the monitoring of Islamic State activity in Syria and Iraq, the group relies to a considerable extent on a network of couriers who physically take messages and USB sticks from sender to recipient, so there is little that digital mass surveillance can do to uncover the plans of Abu-Bakr al-Baghdadi and his men.

Against this backdrop, it is disconcerting that the USA Freedom Bill, a moderate attempt to curb some of the NSA’s most invasive practices, was rejected through an ill-conceived appeal to the terrorist threat against the US. At the same time, though, the defeat of the Bill does not mean that NSA reforms are completely off the table. There will be a round two, and it will not be easy to block the curtailment of NSA’s powers then.

The next stage in the confrontation between proponents and opponents of the NSA’s digital mass surveillance program will be about section 215 of the USA Patriot Act, according to which the FISC can order any organization, be it a bank, a telephone company or a library, to turn data about its customers or users over to the government. This section expires in June, which means that its supporters must secure an extension before then. It is true that the Republicans will have a majority in the Senate as well as in the House of Representatives as a result of their victory in the 2014 midterm elections, but this is by no means a guarantee that section 215 will be renewed.

First of all, keeping a proposal from being adopted is always easier than getting it adopted. All the opponents of the NSA’s mass surveillance program have to do to get their way is stall the renewal process until June 1st. Given Congress’ many gridlocks and overall lack of effectiveness in the last couple of years, this tactic is far from unfeasible. A second major complication is that the Republican Party is internally divided over how to move forward with the NSA. Some of the more libertarian-minded Republicans, such as Rand Paul and Ted Cruz, are less than reliable allies in securing the extension of section 215, as are many Republican members of the House of Representatives. Even though the House was already in the hands of the Republicans, for example, it voted in favor of the USA Freedom Act in the summer of 2014. And then there is, of course, the recently released report on the CIA’s “enhanced interrogation techniques”. While not directly related to the reform of the NSA, the cruelty, deceit and incompetence displayed by the CIA during the worst years of the “War on Terror” will do little to assuage fears that secret services can and do abuse their powers. Since this fear also underlines the reservations that many have about allowing the NSA to keep its digital mass surveillance program going, the torture report does a great disservice to those who wish to maintain the status quo.

There is, thus, a realistic chance that civil liberties and privacy will not be sacrificed in the name of an overblown threat. This is reason for optimism, because the truth is that the terrorist threat is not as big as McCain, Feinstein and Collins suggest, and even if it were, digital surveillance by the NSA is not the way to counter it.