NSA Cyber-Snooping Attacked on Three Fronts in Single Week - Page 2

As you would expect, the Obama administration is planning to appeal the judge's order, thus ensuring that it will ultimately end up before the Supreme Court, which is probably where it belongs. What particularly concerns a number of observers, however, are remarks by Judge Leon that the NSA has been prohibited in the past from conducting some of the types of surveillance that it's now taking fire for having done, but that apparently the agency has simply ignored those orders.

This is clearly reflected in Recommendation 11 of the Review Group, which strongly recommended that programs carried out by the NSA be kept as transparent as possible. "We recommend that the decision to keep secret from the American people programs of the magnitude of the bulk telephony meta-data program should be made only after careful deliberation at high levels of government and only with due consideration of and respect for the strong presumption of transparency that is central to democratic governance," the group wrote in its report.

While some of the group's recommendations aren't going to be enacted by the White House, notably the one that recommends separating the NSA director and the U.S. Cyber Command, it's highly likely that at least some of the recommendations by the group will be put into place.

It's important to remember that the recommendations are intended to bring balance and transparency to the agency in terms of the information gathering activities when directed at U.S. citizens. The idea is to make sure that the advocacy and protections envisioned in the Constitution are maintained, and that the privacy and freedom that is intended to be part of every American's right as a citizen isn't trampled on in the pursuit of bad guys.

But the group, as well as the U.S. District Court, acknowledges the important role of the intelligence community in keeping American citizens safe from terrorist attacks. They just want all of that to take place under a constitutional framework and in full compliance with existing law.

What's happened, as Judge Leon noted in his decision, is that the world has changed since the days when the Supreme Court ruled that phone metadata was not part of a person's expectation of privacy.

Now that phones report your location, who you communicate with using a wide range of communications media, what Websites you browse and even who sends you email, the need for protection has changed. I don't think there's much doubt that the Supreme Court will hear the appeals or that Congress will fail to pay attention. But it needs to be done in a way that preserves the vital functions of the intelligence community as well.

Wayne Rash

Wayne Rash

Wayne Rash is a freelance writer and editor with a 35 year history covering technology. He’s a frequent speaker on business, technology issues and enterprise computing. He covers Washington and...