NSA Oversteps (Again)

Let me be clear, Edward Snowden will never be a hero or a patriot in my eyes. I will not argue that he is traitor, though he is certainly a criminal. And no amount of revelations as to how the NSA operates will change how I view him and what he did.

That said, there is no doubt that Snowden’s leaks have certainly raised and facilitated an important discussion of what has been shown to be questionable practices by the NSA.

As an American and a patriot, I am deeply concerned by the most recent news that the NSA is not just searching email communications of Americans who are in direct contact with foreigners targeted overseas as the agency has previously admitted (a practice that I am not opposed to). It is the revelations in the NY Times that the NSA is in fact searching email and text communications into and out of the country looking for information about foreigners under surveillance that have rattled me.

As the NY Times Editorial Board put it, “[The NSA] copies virtually all overseas messages that Americans send or receive, then scans them to see if they contain any references to people or subjects the agency thinks might have a link to terrorists.”

There is little doubt that data collection at this level goes beyond what Congress authorized in 2008 with the FISA Amendments Act and any interpretation of the 4th Amendment that I am comfortable with.

Indeed, the justification for this practice comes from a NSA set of rules that Snowden leaked, which mentions that the NSA “seeks to acquire communications about the target that are not to or from the target.”

The Obama administration has justified this practice by arguing that the messages aren’t stored and are just searched. But the fact that it is deemed legitimate to search messages where the target isn’t even part of the conversation seems to be an abuse of the system.

In his press conference yesterday, President Obama addressed the scope of the NSA’s surveillance programs by laying out a four-point plan to increase transparency and restore public trust in the system. His ideas are indeed good ones and include working with Congress to reform Section 215 of the Patriot Act which authorizes the collection of telephone metadata; to improve confidence in the FISC by making sure that the court considers both security and personal liberties issues; increasing transparency by directing the intelligence community to make their work as public as possible, appointing a civil liberties and privacy officer and creating a website that will serve as a hub for transparency; and forming a high level group of outsiders to review our surveillance technologies and provide an interim report in 60 days and a final report by the end of the year on our systems and practices.

Obama was explicit: America is not interested in spying on ordinary people and America shows restraint that many governments around the world do not.

To be sure, he is right that other governments overstep far more than the US. Moreover, he has laid out important first steps towards fixing our surveillance problem. But it will surely not be an easy process.

Timothy Edgar, a former intelligence official in the Bush and Obama administrations, admitted that there is ambiguity in the law about what it means to target someone. It seems to me that this is precisely the kind of issue where there should be absolutely no ambiguity. The fact that FISC approved this policy in secret raises further doubts as to its benefits.

As I have argued since Snowden’s initial leak in June, I am not opposed to the NSA running telephone and email surveillance programs. In fact, I believe them to be crucial to national security and that America and Americans have benefitted from many of these practices.

Now it is crucial that we call Obama, his administration and the intelligence community to account as they have promised to. We need full congressional oversight and investigation of what is and is not going on in the NSA program. And most of all, we need bipartisan efforts to streamline and prevent overreaching of the program.

No matter what the President said in his press conference, it is clear that his claim on the Tonight Show that “there is no spying on Americans” is up for dispute. It’s time to clean up this mess.

Read more at Forbes.com