Watchdog Agency Could Keep NSA In Check, Once It Gets Going

By Martin Kaste

Published June 8, 2013 at 10:30 AM CDT

On Friday, President Obama defended the two NSA surveillance programs that were leaked to the news media this week.

One program collects the general public's phone records, the other allegedly gives the government backdoor access to Internet services such as Google and Facebook.

Obama said the programs "strike the right balance," but that's done little to reassure those who think government surveillance has become too broad.

The 9/11 Commission saw this coming. Panel member Jamie Gorelick proposed the commission recommend the creation of an independent agency to keep tabs on all the new post-9/11 surveillance programs.

"Something within government, with appropriately cleared people, to engage in conversation within government about whether civil rights and civil liberties are being appropriately protected as we were enhancing our national security," she says.

Congress agreed. In 2004, it created the Privacy and Civil Liberties Oversight Board, but it's taken a little while for the board to get going. With no website or email, "we're really the equivalent of a government start-up," says David Medine, the board's brand new chairman.

He's been on the job for all of one week. For six years, partisan squabbles in the Senate held up confirmation of the board's members, but now it's finally complete and raring to go.

Medine has already requested a classified briefing on the two controversial NSA programs. He says he wants to find out what's really going on, the purpose of these programs, and how effective they've been. He also questions their legal basis and wants to know how each of these programs have addressed concerns about privacy and civil liberties.

So what happens if the board finds something unconscionable? Can it go public?

"We will try as often as we can to be transparent and public about programs," Medine says, "but we are dealing in an area where there is sensitive information for good reason."

The board can report classified misdeeds to Congress, but members of Congress also face legal limits. For instance, Sen. Ron Wyden of Oregon. For a couple of years now, he's had to restrict himself to making cryptic statements about how the American public would be "surprised" if it knew what was going on. It took the recent leaks to figure out what he was talking about.

But it shouldn't take a leak, says Sharon Bradford Franklin of the bipartisan think tank The Constitution Project. "We should have public disclosures of the administration's interpretation of what these laws mean," she says.

But politically speaking, it's understandable that the administration decided to go with a more generous interpretation of the legal limits of its spying powers. Carroll Doherty at the Pew Research Center has been researching public attitudes on this. "There's greater concern about adequately protecting the country than there is about restricting civil liberties," she says.

But the public may also have a 20th-century notion that government snooping is held in check by courts or bureaucracy. Speed bumps that, at the very least, can slow an investigation down. Not so — fast computers and big data have fundamentally changed how investigations work, says Daniel Weitzner, a computer scientist at MIT who's worked on these issues at the Obama White House.

"To a certain extent, law enforcement and intelligence can put all the data they might ever think of going through in one place and go through that whole investigative process without those speed bumps," he says.

Big Data isn't going away, Weitzner says, so maybe it's time to redefine privacy. Instead of telling government it can't have the data, he says, it may be time to require clear rules about what the data can be used for.