With U.S. Government surveillance being a hot news issue lately, several members of Congress have stepped up and started working on bills to place limits on NSA powers. Although these are admirable attempts, most proposals likely won’t have much affect on NSA operations. So of course I thought I’d propose some points that I think at a minimum any surveillance bill should cover.
1. No backdoors or deliberate weakening of security
The single most damaging aspect of recent NSA revelations is that they have deliberately weakened cryptography and caused companies to bypass their own security measures. If we can’t trust the security of our own products, everything falls apart. Although this has had the side-effect of causing the internet community to fill that void, we still need to trust basic foundations such as crypto algorithms.
Approaching a company to even suggest they weaken security should be a crime.
Related issue: the mass collecting of 0-day exploits. I have mixed feelings on how to limit this, but we at least need limits. The fact is that government law enforcement and military organizations are sitting on tens of thousands of security flaws that put us all at risk. Rather than reporting these flaws to vendors to get them fixed and make us all secure, they set these flaws aside for years waiting for the opportunity to exploit them. There are many real threats we all face out there and it is absurd to think that others can’t discover these same flaws to exploit us. By sitting on 0-days, our own government is treating us all as their personal cyberwar pawns.
2. Create rules for collection as well as searches
We saw how the NSA exploited semantics to get away with gathering personal records and not actually calling it a search. They got away with it once, we should never allow that excuse again. Any new laws should clearly define both searches and collection and have strict laws that apply to both.
3. Clear definition of national security
Since the Patriot Act, law enforcement agencies have stretched and abused the definitions of national security and terrorism so much that almost anything can fall under those terms. National security should only refer to imminent or credible domestic threats from foreign entities. Drug trafficking is not terrorism. Hacking a school computer is not terrorism. Copyright infringement is not terrorism.
4. No open-ended gag orders
Gag orders make sense for ongoing investigations or perhaps to protect techniques used in other investigations but there has to be a limit. Once an investigation is over, there is no valid reason to indefinitely prevent someone from revealing basic facts about court orders. That is, there’s no reason to hide this fact unless your investigations are perhaps stretching the laws.
5. No lying to Congress or the courts
It’s disconcerting that I would even need to say this, but giving false information to protect classified information should be a crime. The NSA can simply decline to answer certain questions like everyone else does when it comes to sensitive information. Or there’s always the 5th amendment if the answer to a question would implicate them in a crime.
6. Indirect association is not justification
Including direct contacts in surveillance may be justified, but including friends of friends of friends is really pushing it and includes just about everyone. So there’s that.
7. No using loopholes
The NSA is not supposed to be spying on Americans but they can legally spy on other countries. The same goes for other countries, they can spy on the US. If the NSA needs info on Americans, they can just go to their spying partners to bypass any legal restrictions. Spying on Americans must include getting information from spy partners.
And speaking of loopholes, many of the surveillance abuses we have seen recently are due to loopholes or creative interpretation of the laws. Allowing the Government to keep these interpretations secret is setting the system up for abuse. We need transparency for loopholes and creative interpretations.
8. No forcing companies to lie
Again, do I even have to say this? The NSA and FBI will ultimately destroy the credibility of US companies unless the law specifically states that people like Mark Zuckerberg can’t come out and say they don’t give secret access to the US government.
9. Strong whistleblower immunity
We saw how self regulation, court supervision, and congressional oversight has overwhelmingly failed to protect us from law enforcement abuses. There is only one way to ensure compliance to laws: strong whistleblower protection. We need insiders to let us know when the NSA or other agencies make a habit of letting the rules slide.
Whistleblowers need non-governmental and anonymous third party protection. We need to exempt these whistleblowers from prosecution and provide them legal yet powerful alternatives to going public. You’d think that even the NSA would prefer fighting this battle in a court over having to face leaks of highly confidential documents. In fact, I think that the only reason to oppose these laws if you actually have something to hide. The NSA’s fear of transparency should be a blaring alarm that something is horribly wrong.
The NSA thinks that public response has been unfair and will severely limit their ability to protect us. What they don’t seem to understand is the reasons we have these limits in the first place. When the NSA can only focus on foreign threats, they have no interest in domestic law enforcement. Suspicionless spying is incompatible with domestic law enforcement and justice systems.
The greatest concern, however, is the unchecked executive and military power. The fact that there has been so much for Snowden to reveal demonstrates the level of abuse. Unfortunately, the capabilities are already in place so even legal limits are largely superficial and self-enforced. It would be trivial to ignore those laws in a national security emergency.
I cringe at the thought of becoming one of those people warning others to be afraid, but that is why we put limits on the government, so we know we don’t ever have to be afraid. We solve the little problems now so we don’t have to face the big problems later. We understand the need for surveillance, we just need to know when the cameras point at us.