Latest NSA Leaks Fuel New Skepticism, Congressional Action, Lawmakers, Privacy Advocates Say

Members of Congress called for hearings and oversight after the NSA revelations, following up on previous oversight commitments. “I plan to hold another hearing on these matters in the Judiciary Committee and will continue to demand honest and forthright answers from the intelligence community,” said Chairman Patrick Leahy, D-Vt., in a written statement Friday. He described concern “that we are still not getting straightforward answers from the NSA.” Leahy called for “close oversight and appropriate checks and balances.” Leahy hasn’t yet disclosed a date for the hearing, said his spokeswoman. House Judiciary Chairman Bob Goodlatte, R-Va., plans to hold a classified hearing on the NSA likely in September, said a Judiciary aide Friday.

The Senate Intelligence Committee previously committed to NSA oversight hearings this fall. In a statement Friday, Intelligence Chairwoman Dianne Feinstein, D-Calif., described the many reports on Foreign Intelligence Surveillance Act activities the committee receives but called for more oversight of the NSA. She called last week for major Intelligence Committee hearings this fall on the surveillance programs, following President Barack Obama’s news conference where he called for surveillance reform (WID Aug 12 p2). The issues raised in the recent revelations can be expected to come up in those hearings, said a spokesman for Feinstein. There are no dates announced for the Senate Intelligence hearings, but they will likely be prioritized soon after Congress resumes, he said.

"The committee has never identified an instance in which the NSA has intentionally abused its authority to conduct surveillance for inappropriate purposes,” said Feinstein. “The committee can and should do more to independently verify that NSA’s operations are appropriate, and its reports of compliance incidents are accurate. This should include more routine trips to NSA by committee staff and committee hearings at which all compliance issues can be fully discussed.” She defended the “compliance incidents” at question, characterizing them as “roaming” incidents where the NSA tracks a non-American who is outside the U.S. and enters the country. “As the laws and rules governing NSA surveillance require different procedures once someone enters the U.S. -- generally to require a specific FISA court order -- NSA will cite this as a ‘compliance incident,’ and either cease the surveillance or obtain the required FISA court order,” she added. “The majority of these ‘compliance incidents’ are, therefore, unintentional and do not involve any inappropriate surveillance of Americans."

It’s clear “the Intelligence Committee has failed in its oversight capacity,” said Mark Jaycox, Electronic Frontier Foundation policy analyst, in an interview. The leaked audit is evidence that the oversight abilities being touted to lawmakers and citizens don’t exist, which “should serve as a catalyst” for legislative action, he said. “Congress should certainly have a fire lit to address these issues.” An investigatory body should be created to examine these issues rather than relying on oversight bodies that have failed, he said. “There should be some sort of independent commission” to conduct “a full-blown investigation” into the surveillance programs, said Jaycox. The creation of this kind of commission or committee “is something that’s going to happen,” he said.

Transparency laws are “a good step forward,” but not enough, Jaycox said. “The transparency bills are a good start, but they're simply reporting bills.” So far this year, Congress has seen a flurry of bills that aim to increase transparency around the NSA’s surveillance programs, including Leahy’s FISA Accountability and Privacy Protection Act, and the Surveillance Transparency Act by Sen. Al Franken, D-Minn., both of which would create reporting requirements on the surveillance programs. Rep. Zoe Lofgren, D-Calif., introduced the Surveillance Order Reporting Act, and Reps. Rick Larsen, D-Wash., and Justin Amash, R-Mich., introduced the Government Surveillance Transparency Act, both of which would give online service providers more freedom to disclose information about the surveillance requests they receive and honor. Bills that would allow companies to disclose more information about the surveillance requests they get would still provide “just an inkling more about what’s going on,” Jaycox said. He characterized bills to change the Foreign Intelligence Surveillance Court (FISC) process -- the FISA Judge Selection Reform Act and the FISA Court Reform Act, both sponsored by Sen. Richard Blumenthal, D-Conn. -- in a similar way. “Including reporting requirements is good, structurally changing the FISC is good,” but these bills “all kind of miss the point that we don’t have enough information,” he said.

Information about surveillance power abuse “is going to propel the legislation that has already been introduced,” said Director Greg Nojeim of the Center for Democracy and Technology’s Project on Freedom, Security & Technology. Legislation aimed at increasing transparency around surveillance programs -- such as bills that would require FISC to make its opinions public -- “is directly responsive and going to get a boost” after reports about the misuse of surveillance programs, he told us. “Congress should be asking questions such as, who got fired for illegally eavesdropping ... or was it just swept under the rug as an ‘overcollection.'”