National Security Letters

The Senate Kills Surveillance Reform and Glenn Greenwald Shrugs

By Benjamin Wittes
Wednesday, November 19, 2014, 10:47 AM

The Senate yesterday buried---at least for now---surveillance reform, when Republican senators refused to allow the current draft of the measure to proceed to a vote. Glenn Greenwald has an interesting reaction to the legislative death of the grandiosely-named USA Freedom Act: It doesn't matter. He writes, "it has been clear from the start that U.S. legislation is not going to impose meaningful limitations on the NSA’s powers of mass surveillance, at least not fundamentally." Change, rather, is going to come from elsewhere: from the posture of the technology companies, from individual use of encryption, from policy decisions of countries other than the United States, and from court proceedings:

The changes from the Snowden disclosures are found far from the Kabuki theater of the DC political class, and they are unquestionably significant. That does not mean the battle is inevitably won: the U.S. Government remains the most powerful government on earth, has all sorts of ways to continue to induce the complicity of big Silicon Valley firms, and is not going to cede dominion over the internet easily. But the battle is underway and is a formidable one, not because of anything the U.S. Congress is doing but despite that.

I find this argument a little perplexing coming from the man who considered the NSA's bulk metadata program to be so important and so alarming that it was the very first program he broke in all of the documents Edward Snowden gave him.

Metadata can't really be encrypted; it's the information used to deliver content and thus has to be readable, after all. And the law as currently interpreted permits NSA to collect it in bulk. If one thinks this activity is offensive and important, one should not be too dismissive of legislative action to curtail it. Yet Greenwald suddenly does not sound quite so alarmed by the possibility that NSA would retain the authority to bulk collect metadata:

There is a real question about whether the defeat of this bill is good, bad, or irrelevant. To begin with, it sought to change only one small sliver of NSA mass surveillance (domestic bulk collection of phone records under section 215 of the Patriot Act) while leaving completely unchanged the primary means of NSA mass surveillance, which takes place under section 702 of the FISA Amendments Act, based on the lovely and quintessentially American theory that all that matters are the privacy rights of Americans (and not the 95% of the planet called “non-Americans”).

There were some mildly positive provisions in the USA Freedom Act: the placement of “public advocates” at the FISA court so that someone contests the claims of the US Government; the prohibition on the NSA holding Americans’ phone records, requiring instead that they obtain FISA court approval before seeking specific records from the telecoms (which already hold those records for at least 18 months); and reducing the agency’s “contact chaining” analysis from three hops to two. One could reasonably argue (as the ACLU and EFF did) that, though woefully inadequate, the bill was a net-positive as a first step toward real reform, but one could also reasonably argue, as Marcy Wheeler has with characteristic insight, that the bill is so larded with ambiguities and fundamental inadequacies that it would forestall better options and advocates for real reform should thus root for its defeat.

Huh. There's a lot in this short passage to unpack, but focus for now just on Greenwald's contemplation of the possibility that killing the USA Freedom Act might be a "good" thing and his dismissal of the metadata program as merely a "small sliver" of NSA mass surveillance. He even goes so far as to dismiss the end of bulk collection of phone records under Section 215 as no more than "mildly positive." I don't recall his reaction to the underlying program, at the time he revealed it, as only that bulk telephony metadata collection was mildly negative. I recall a slightly more breathless, outraged response. So what then are we to make of his now-casual dismissal of a bill to curtail the program---much less the entire reform mechanism, which is to say legislation, that would enable that curtailing? How can bulk metadata collection be an intolerable outrage and ending the 215 program be merely "mildly positive" or even a net negative?

One possibility is that Greenwald doesn't know how to take yes for an answer. He is outraged by bulk metadata collection. Congress contemplates ending bulk metadata collection. So it suddenly fades in his mind in importance relative to outrages Congress is not addressing.

Another possibility is that Greenwald does not quite know what he wants reform-wise. He spends a great deal more time, in general, criticizing than he does proposing. You can pore over all of his voluminous writing all day without ever getting a clear sense of what he actually favors, though you get a very clear sense of the many things he vociferously opposes. You also don't get much of a sense of how he prioritizes, or if he prioritizes, his opposition. His amps, as they say in Spinal Tap, go to 11---and they're always there. I have no sense of what constitutes his minimum threshold for a valuable reform, save that in this post anyway, he regards the original USA Freedom Act as "a good bill: real reform" and that he regards the bill the Senate killed yesterday as a perhaps worse than legislative inaction.

Moreover, if you line up all of the legal principles about which Greenwald feels strongly, it becomes hard to imagine a surveillance reform bill that would satisfy him that does not utterly neuter U.S. intelligence authorities. To name but a few, Greenwald:

  • regards current judicial review mechanisms as hopelessly inadequate;
  • believes that surveillance should take place only on highly particularized suspicion;
  • sometimes implies, though never quite states, that electronic surveillance of U.S. persons should always require a warrant; and
  • also repeatedly suggests that the U.S. owes the same consideration to the privacy rights of foreigners abroad as it does to its own citizens.

When you put it all together, it's hard to imagine any legislature in this country passing anything that would remotely satisfy his standards. So perhaps he's right to dismiss Congress as a viable actor for reform. His own views are so extreme that there is, in fact, no prospect of legislative change that would satisfy the principles he has embraced.

But what about for the rest of us---those who have an even-slightly less dire view of the world than does Greenwald? The bill the Senate killed yesterday had both positive and negative elements, in my view. And Congress has to act before May of next year if the Section 215 authority is not to expire. It also has to act if we are to inject some measure of adversarial process into FISA Court proceedings and if we are to codify more robust regular reporting of wiretapping data, both from companies and from the government. So we'll start over in January and we'll work on a deadline with a very different Congress. The result will likely be legislation of some sort, but it will ironically be legislation for which Greenwald has even greater contempt than he does for the bill Congress buried yesterday.