FISA

About (A Lot More Than) Metadata

By Chris Donesa
Thursday, April 10, 2014, 7:52 AM

The recent announcements by the President and the leaders of the House Intelligence Committee marked the beginning of the end of more than a decade of bulk metadata collection by the government under evolving authorities and legal structures. Now those structures are likely to change. Here on Lawfare, Matt Danzer, Ben Wittes and Carrie Cordero have assessed provisions of the House Intelligence Committee's surveillance bill, introduced by Chairman Rogers and Ranking Member Ruppersberger.  I’d like to add to the discussion, by underscoring a straightforward point: the policy debate ought to be about much, much more than just the nuts and bolts of metadata collection.

The nature and scope of the NSA’s telephone metadata programs have been largely declassified. We thus confront a rare opportunity for a full and open debate on technology and surveillance, writ large. It wasn’t always this way. In the past---particularly in the immediate wake of 9/11---the nature of the threat, the political climate, and the imperative for operational secrecy essentially boiled public debate down to its truest core. The legislative process then was not predominantly about granular details, but instead comprised a broader referendum on whether to empower the intelligence community to take necessary steps to detect and prevent future terrorist attacks. Jameel Jaffer of the ACLU has suggested that the move to end bulk government collection has followed a similar referendum---which, according to him, showed that the intelligence oversight process was “broken,” and that the surveillance at issue has “not been able to survive public scrutiny.” 

The concept of a broad referendum is important, even if Jaffer’s specific argument is wrong. (As an aside, I think it beyond doubt that the American people would have overwhelmingly approved bulk collection immediately after 9/11, had it been publicly considered and justified on terms understood at the time in the national security community---but that’s another story.)  To view the nation’s present policy task as a narrow appraisal of foreign intelligence surveillance is to risk ignoring or downplaying some larger questions---ones we ought to be squarely confronting and resolving now.  For one thing, we are more than a decade removed from 9/11. The threats have substantially changed, even if they arguably have not lessened.  Many of the issues at stake---the nature of metadata, the implications of big data, and increased global connectedness, to name a few---also are in no way exclusive to the realm of foreign intelligence. And technology has evolved, too; some of the most important technological points are largely of first impression, and sweep far more broadly than how to enable telecommunications firms and the government to share information, while respecting national security, privacy, and private enterprise.

That’s precisely why recent legislative precedents probably won’t help much. For the past few years, Congress mostly has enacted surveillance legislation ad hoc, as a “band-aid” meant to address specific and immediate national security needs---though without the luxury of fitting any particular bill into a broader conceptual framework.  (That’s not necessarily a criticism; as a staff participant in many of the relevant episodes, I certainly share responsibility for the piecemeal approach.)  But here’s the thing: none of the “band-aids” were ever intended to be permanent legal structures, or to describe a comprehensive approach to national security and technology.

Unfortunately, and on first glance, the White House’s and the Intelligence Committee’s proposals look an awful lot like “band aids.”  The Administration has described its position in broad strokes, but has not yet addressed important implementation issues in any significant way.  The House bill varies on roughly the same theme: it boasts a clear and comprehensive approach to some of the basics, while leaving open the implementation and interpretation of critical provisions. The legislation also would require private sector entities to “immediately provide the Government with records, whether existing or created in the future, in the format specified by the Government.”  This is a notable, added burden on the private sector over current law, particularly in light of the continued obstacles faced by the FBI’s proposals to reform CALEA. And lastly, neither the White House’s nor the Intelligence Committee’s proposals mention possible legislative sunsets; the third party doctrine; or the metadata program’s relationship to other statutory authorities or the President’s constitutional authority.

Which is to say: there’s a lot that’s missing, but that shouldn’t be, given the circumstances. A rare opportunity, for a comprehensive public debate on issues broader than just bulk metadata or the needs of the intelligence community, is now before us.  We ought to take full advantage of it.

Chris Donesa was Chief Counsel for the House Permanent Select Committee on Intelligence from 2004-2013.