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  • 03.10.15

Can The NSA Be Reformed?

An ACLU lawyer and the chief lawyer for the government’s intelligence community square off.

Can The NSA Be Reformed?
[Illustrations: Markovka via Shutterstock]

Ever since Edward Snowden’s revelations about NSA surveillance nearly two years ago, Americans have become more concerned with government surveillance. A recent poll found that more than two thirds of Americans are dissatisfied with government surveillance of U.S. citizens. But what steps can be taken to change the surveillance infrastructure in the country?

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That was the topic of a debate between Jameel Jaffer, deputy legal director for the ACLU and Robert Litt, general counsel to the Office of the Director of National Intelligence, held last week at the Columbia University Law School.


Much of the debate focused on the call records program, as one of the most-discussed mass surveillance programs. As part of that program, the NSA keeps records of every call made by a US citizen, including whom they were calling, how long the conversation lasted, and where they were at the time of the call. In late 2014, the Senate failed to pass a bill that would have limited or ended that program.

“That program can be fairly described as the largest surveillance program ever adopted by a democratic government by its own citizens,” said Jaffer. “And it’s only one of the many different surveillance program that the media has disclosed.”

The controversy around the call records program is that it acts as a wide net, collecting data from as many people as possible, rather than a precision tool targeted at suspected criminals. In effect, the U.S. government treats all of its own citizens as suspected criminals under this program. There is a special court, the Foreign Intelligence Surveillance Court, which was established to oversee government surveillance for foreign intelligence purposes. The call records program was adopted without even an opinion from this court, which already operates in secret and without any lawyers arguing before the court other than government attorneys.


“The mechanisms that were meant to be safeguard against government abuse and overreach have failed and failed quite spectacularly,” said Jaffer. “The Foreign Intelligence Surveillance Court was supposed to be a safeguard for individual liberties. Instead, it signed off on everything the NSA wanted to do.”

In contrast, to Jaffer, Litt argued that what the NSA needs is more transparency, not reform. According to Litt, there had been discussions within the executive branch about increasing transparency about surveillance programs even prior to Snowden’s disclosures.

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“I personally feel that if we found a way that disclose the fact that we were interpreting Section 215 [of the PATRIOT Act] to permit phone collection that there would have been considerably less controversy about it,” said Litt. “We have all come away from this with the lesson that we’re not going to be able to keep the public’s trust if the public doesn’t have some understanding at the very least of how we’re interpreting the authorities and the kind of oversight that exists over the programs that we are carrying out.”


Jaffer disagreed, arguing that the only reason there hasn’t been more outrage about mass surveillance is because it is a largely invisible process. Meanwhile, Litt stressed that there are existing systems of oversight and limits on what the NSA can collect. In his view, the NSA is not in need of any substantive reform.

When I asked Litt about about specific NSA programs that have damaged the encryption protocols the Internet is built on–which ordinary Americans use for mundane tasks like online banking and that human rights advocates use to protect their anonymity–he refused to comment and stated that he would not speak about specific NSA programs, despite the fact that he had previously spoken about specific programs such as the call records collection.

“The NSA has too much power and the oversight mechanisms are broken,” said Jaffer. “The kind of reforms we need are not piecemeal but systemic reform.”

About the author

Jay is a freelance journalist, formerly a staff writer for Fast Company. He writes about technology, inequality, and the Middle East.

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