But those aren't mutually exclusive under U.S. law. All these programs now have FISA warrants, so at least one court "ordered" them. I assume you are unhappy with FISA as it stands, but how would you change it? If you're going to require the NSA to name each and every person whose data they might want to collect, you're going to drastically limit their ability to collect information from foreign sources in an era of throwaway email addresses and burner phones.
I would prevent the NSA from being able to wiretap for 7 days without a warrant.
I would prevent the NSA from using Vampire Taps in Fiber Optic networks.
I would allow the disclosure of National Security Letters and I would block indefinite duration gag orders (10 years is fine; infinity is not).
I would hold our intelligence organizations accountable for lying to the public.
I would enact a new wiretapping act to prevent these domestic abuses.
I would only apply these changes to domestic surveillance.
Would I trade security for this liberty? In a heartbeat.
The punchline for all of this is simple: all of the ridiculous intelligence and security apparati we've developed since 9/11 don't make us any safer, and, in fact, inspire the very terrorism we seek to disrupt. The $X0Billion dollars we spend every year could be used for much better purposes, like going to Mars.
Generally: When you say "only apply these changes to domestic surveillance", you mean any program that requires intercepts to happen on U.S. soil, even if one of the participants can be determined to be outside the U.S.?
More specifically:
I would prevent the NSA from being able to wiretap for 7 days without a warrant.
How do you deal with a "hot" investigation, wherein some subject of intense interest calls/emails a previously unidentified subject, who then calls/emails a third party? For the sake of argument, assume they're all from IPs outside the U.S., but using Skype through U.S. servers. (If your definition of "domestic" doesn't fit this, adjust as needed).
It seems to me you have three choices:
- Don't intercept the latter communication. Wait (minutes, hours?) until you get a judge's order on the new subject, while hoping the latter two subjects communicate again, and that no critical intelligence is lost.
- Allow for broad-ranging warrants that either give an agent discretion to follow leads regardless of the actual individual involved, or instead allow for "drag net" style intercepts that are later filtered for relevance per a FISC-approved process (this is essentially what we have now, as I understand it.)
- Allow backdated or 7-day-forgiveness warrants. (Again, what we have now.)
Is there an alternative?
Many of your other points I agree with, or at least agree they're proper grist for an intelligence oversight bill. Separation of powers is a real issue, though: Congress can't tell the executive how to run national security operations any more than it can tell the executive how to run a war. It has the power of the purse, but we don't live in a parliamentary system. If you don't like the way the President uses his Constitutional powers, vote for another guy/gal.
I think it's facetious to imply that the NSA cannot get a warrant anytime it wants. My answer as a hacker would be that the justice system should make an API through which the NSA makes these requests and the judges reply. It would be both fast and logged. Make the logs classified for 25 years; just not infinity.
A "Hot" investigation is one that will likely have a judge standing by, if that becomes the standard by which the NSA must conduct its business. What I am objecting to is the idea of anonymous, unquestionable, omniscient wiretapping. That's quite different from pursuing a case.
To put it explicitly: It is not an equitable social compromise to tap all of the data at a switch versus tapping a known session or known port. The NSA has the capability to tap anything they want, it's just easier to take everything.
What I'm pissed about is not that the NSA is wiretapping people. You should know the NSA is wiretapping people. What I'm pissed off about is that the NSA is so lazy that they dragnet everything instead of tapping the stuff they need. Sifting through everything looking for an indication of crime is very different from tactically selecting specific instances for evaluation.
Again, I believe in the capabilities of the US Intelligence agencies and I believe they are smart enough to not require a dragnet to do their work. It's not really Voldemort evil, they want to protect us. The problem is laziness; the banality of evil.
