In mid-December, a good portion of our wired world had a collective cow after Instagram put out a confusing statement about how it planned to treat users' photos. (The company blamed the ensuing uproar on imprecise wording and retreated to its original terms of service.) Oh, we love our photos. Fine. Whatever.
Now compare that uproar with the (relative) sound of silence greeting the five-year extension of extraordinary spying powers handed to the National Security Agency. Even in an age when attention deficit disorder seems to be the default mode, this was something else. In the closing days of 2012, President Obama signed into law a bill that lets the government avoid judicial review, leaving the NSA free through the end of his term to intercept international e-mails and phone calls without needing a court order. (The new law is awkwardly named the FISA Amendments Act Reauthorization Act of 2012, and it reauthorizes 2008's FISA Amendments Act, which modified the Foreign Intelligence Surveillance Act.)
On paper, the new act prevents domestic targeting. Before starting surveillance on Americans, the government is supposed to ask for a warrant from a special 11-judge court of U.S. district judges appointed by the Supreme Court. But that's little balm to privacy advocates when there's still no huge barrier to prevent the government from gathering access to Americans' international communications. In fact, the FISA court possesses only limited supervisory powers to investigate particular surveillance programs, even in cases where the government's activities are judged to be unconstitutional.
Until the passage of the FISA Amendments Act of 2008 Uncle Sam first had to prove to a court that there was probable cause connecting a target to a terror group or a foreign government before the NSA could proceed. And this extension of those 2008 amendments means the NSA has another five years to conduct its business in the way it sees fit.
- Court order allowing NSA data collection program revealed
- Google: We're bombarded by gov't requests on user data
- Warrantless surveillance law may face test in criminal case
- Watching you: When and where you're tracked throughout the day
- Secret court reveals justification for NSA's mass data collection
What's more, the fact is that nobody outside the purview of the NSA knows what the agency is doing with this very free hand. The NSA could theoretically collect all phone calls between the U.S. and London, according to the ACLU, after informing the FISA court that a "significant purpose of its new surveillance program is to collect foreign intelligence information." That's a lot of power. After telling the court that a surveillance target lives outside the U.S., the NSA basically can decide who to monitor and why, and it doesn't need to inform any other agency about its activities. That's even more power.
There's nothing preventing the government from holding onto information about U.S. citizens and residents for as long as it wants if it's deemed to be "foreign intelligence information." What then? How about an uber-database the powers that be can comb through as they like? I'm not the only one raising that as a concern.
In the United States Senate, Sen. Ron Wyden (D-Oregon), and Sen. Rand Paul (R-Kentucky) proposed separate amendments to try and bring more transparency and oversight to the government's activities. Both attempts failed and the full Senate later voted 73-23 for the extension. No surprise there, given that Senate Majority Leader Harry Reid (D-Nevada) had sought to re-authorize the bill without debate. Democrats and Republican political leaders trust the NSA to be on its best behavior but this is an agency with -- literally -- tens of billions of dollars in post-9/11 budget awards and thousands of employees equipped with the best spy technology money can buy. When the Bush administration went after Al Qaeda, NSA officials participated in the domestic monitoring of people in the United States without getting court warrants. (For more about the program, code-named Stellar Wind, warrantless-click here.
And we just signed off on another five years of -- who knows what? Good luck to us because we're all going to need it. I spent the weekend wondering why there wasn't more public protest after the president signed the FISA extension. I'm still not sure why Obama's received little of the grief that George Bush got for opening this Pandora's Box ushering in the age of warrantless wiretapping. Maybe it's the fault of a lazy media. If so, it also is the fault of a lazy and disinterested public. Either way, it marked a lousy ending for the old year and a precarious start to the new one.