Privacy Paradox

'Beyond Snowden' Falls Short on Upcoming Section 702 Re-authorization Debate

By Liza Goitein
Thursday, September 7, 2017, 1:00 PM

This piece is part of a series on Tim Edgar's new book, "Beyond Snowden."

Tim Edgar’s “Beyond Snowden” makes an important contribution to the burgeoning body of literature on post-9/11 NSA surveillance. No book on foreign intelligence surveillance can cover everything, but Edgar succeeds in conveying a huge amount of factual material in a highly readable way. Interested laypersons (for whom I assume the book is intended) will learn a great deal without feeling overwhelmed. Surveillance experts will find the book engaging and thought-provoking despite their familiarity with the topic.

Edgar minces no words in describing the threat posed by mass surveillance. He asserts that Section 702 of FISA “created serious risks for privacy. FISA had been a shield for civil liberties. After 9/11, it became a sword to compel cooperation with transnational surveillance.” He argues that “we [are] fooling ourselves if we believe[] that existing checks and balances, despite all the surveillance reforms adopted after 2013, ha[ve] made the NSA tyrant-proof.”) Not even the Constitution can protect us: Edgar observes that “in an era of global mass surveillance, the Fourth Amendment protects only a tiny fraction of the world’s data.”

In a particularly good chapter titled “Passing the Buck,” Edgar describes how mass surveillance programs escaped rigorous oversight after 9/11. Members of Congress routinely skipped classified briefings; intelligence committees were cozy with the agencies they were meant to oversee; the Supreme Court adopted an approach to standing that made surveillance challenges all but impossible. Even President Obama was, in a sense, passing the buck when he justified mass surveillance by pointing to the approval of Congress and the judiciary. As Edgar notes, Obama “had himself twice sworn an oath to uphold the entire Constitution.”

It’s ironic, then, that the book’s main weakness (in my view) is that Edgar himself does some passing of the buck in his conclusions and recommendations. Having trenchantly described the threat modern surveillance poses to privacy, his proposed changes strike me as fairly weak sauce – in part because they leave unanswered some of the most important and hardest questions he raises. Most notably (and oddly, given the timing of the book’s publication), Edgar fails to grapple with the questions at the heart of the current debate over reauthorization of Section 702.

Foremost among these is how Congress should address the problem of “incidental” collection of Americans’ communications, an inevitable byproduct of transnational surveillance. Edgar acknowledges that “[s]ignificant doubts remain about the constitutionality of NSA collection that may involve incidental communications of U.S. persons or persons inside the United States—which is to say, much of what the NSA does.” Laying out his recommendations at the end of the book, Edgar states: “[S]urveillance of foreign targets affects the constitutional rights of Americans, and the federal courts must devise rules that protect these rights in the digital age.” I read these statements to suggest that there should be better protections for Americans in communication with foreign targets than the law now provides.

Yet the current approach to incidental collection under Section 702 is one Edgar himself promoted while serving in the executive branch. He describes the law’s basic model—something between a warrant and no judicial review whatsoever—as “the correct approach” to transnational surveillance. The unanswered question here is: why? He makes neither a legal nor a policy case for this “middle way,” beyond the simple (and not particularly compelling) fact that it represents a compromise. If, as he seems to acknowledge elsewhere, Americans’ privacy interests in their communications with foreigners do not turn on which communicant is the “target,” why should their privacy protections turn on that distinction? He may well have good answers to this question, but he doesn’t present them.

Moreover, one can accept the warrantless-but-incidental acquisition by the NSA of Americans’ communications without endorsing the practice of the FBI obtaining that data and searching through it for information to use against Americans, not only in foreign intelligence cases but in criminal cases with no national security dimensions. These “back door searches” are clearly the most contentious aspect of Section 702 surveillance inside the United States. And while that laser focus partially reflects a lack of consideration for the privacy of foreigners, there is no question that back door searches present enormously significant constitutional and policy concerns. Yet, if there was any discussion of the validity of back door searches in Edgar’s book, it was fleeting enough that I missed it (and couldn’t find it when I went back to look).

Another critical question in the Section 702 debate is whether the law’s broad definition of “foreign intelligence” could facilitate unjustified intrusions into the privacy of innocent foreigners (and the Americans in contact with them). Once again, Edgar does not take this issue on directly. He hints at what his answer might be when he recommends that the U.S. enter into a pact with “a select group of democratic nations” to “pool their intelligence resources” while limiting surveillance of each other “for anything other than genuine security threats.” We should not make the same deal, he warns, with other countries, as our adversaries would not honor the pact and “[i]t would be foolish for the United States and its allies to [limit their intelligence capabilities] based on what could only be an empty promise.”

Does this mean Edgar would oppose limiting Section 702 surveillance – as proposed by civil liberties advocates – to cases in which the government had a reasonable belief that the target was a foreign power or an agent of a foreign power, or posed a threat to our national security or interests? I’m certain Edgar does not believe that our own standards for surveillance should be no higher than those of our adversaries, who routinely throw civil liberties to the wind. But any other approach implies the kind of “unilateral disarmament” he seems to disfavor when discussing his proposed pact. Where would he come down on this crucial issue?

Edgar forthrightly acknowledges that he has not addressed certain “specific reforms suggested by civil liberties and privacy advocates to Section 702 of FISA,” noting that his recommendations are geared toward the “long-term effort” of surveillance reform rather than constituting “a short-term action plan.” But the questions of who is a permissible foreign target and what back-end protections should exist for the incidentally collected data of Americans are central to long-term reform of surveillance under multiple authorities.

Edgar has a long list of other recommendations, most of which I agree with wholeheartedly. The majority (although not all) are focused on strengthening oversight rather than changing the substantive rules. While such changes are necessary, I don’t believe they’re sufficient, given the privacy threats Edgar so aptly describes. And there’s a certain amount of “passing the buck” even on these recommendations: some of them endorse a clearly desirable but elusive result without guidance on how to achieve it. For instance, I couldn’t agree more that “[i]ntelligence agencies should do more about overclassification,” but that’s been a consensus position both inside and outside the government for decades. The question is what should be done, and the genuine difficulties in answering this question are why the problem has been so intractable. (To be fair, how to solve the problem of overclassification—or lax congressional oversight, or the Supreme Court’s cramped interpretation of standing requirements—could fill books in themselves, and for the lay reader, Edgar performs a service just by flagging the need to fix these problems.)  

Edgar has a detailed grasp of the issues at stake in the foreign surveillance debate and a unique perspective given his work for both the intelligence community and the ACLU. That’s what makes this book valuable, unanswered questions aside. But it’s also why I wish he had answered those questions; I would have liked to read and think about his take on them. And one way or another, society will need to answer them as the ongoing surveillance debate unfolds.