THE NATIONAL Security Agency (NSA) is a huge organization of human beings with the same capacity to misunderstand, miscommunicate and misbehave as the rest of us.
That has been one lesson from months
organization. Nothing has demonstrated a J. Edgar Hoover-style conspiracy to abuse the extraordinary amount of information the NSA can access. But the revelations have underscored the importance of imposing more meaningful checks on the agency’s activities.
The latest revelations date to 2009, when the Justice Department discovered that the NSA had improperly sorted through telephone call records, so-called metadata the government collects in bulk but is supposed to use only in certain circumstances. An “alert list” contained numbers that hadn’t been vetted according to a legal standard agents must meet to justify NSA scrutiny. Though it appears that NSA agents still had to meet that standard to run intensive analysis on any phone numbers in the database, the disclosure infuriated Judge Reggie B. Walton, a member of the NSA’s judicial overseer, the Foreign Intelligence Surveillance Court (FISC). Privacy restrictions “have been so frequently and systemically violated that it can fairly be said that this critical element of the overall [phone records] regime has never fully functioned effectively,” he wrote, according to The Post’s article.
In a related filing, the NSA also admitted that its agents violated the rules at other points in the collection program, apparently because the agents didn’t understand that they were working with that group of records. In other words, lacking a good understanding of how the complex systems worked and what the rules were and without satisfactory systems to protect sensitive records, the agency messed up.
Even when officials are well-trained, misuse is possible. That’s a lesson from another story on government data gathering last week, about a 2010 incident in which investigators took a laptop, camera, phone and memory stick from David House, a supporter of Pentagon leaker Pfc. Bradley Manning. Newly released documents reveal that government agents — not in the NSA — put Mr. House’s name on a border watch list “for questioning re leak of classified material” and instructed border agents to obtain his digital effects. They did not have a warrant, but the government has wide latitude to confiscate material at border crossings. That might make sense if you’re taking legitimate steps to regulate the border, but not as a back-door method of confiscating Americans’ memory sticks.
Both cases deserve Congress’s scrutiny. Judge Walton’s stinging rebuke indicates that the FISC isn’t the “rubber stamp” some critics insist it is. Lawmakers should make sure the judges are deeply involved in overseeing the agency and that they have the opportunity to hear from adversarial voices challenging the government, particularly when important points of law are at stake.
The FISC on Friday ordered the government to release more of its still-classified rulings relating to bulk records collection. It should not have taken Edward Snowden’s leaks to spur more transparency. Lawmakers should deal with the problem of overclassification across the government. President Obama, meanwhile, should give explicit instructions to a review board he convened. Weighing the effectiveness of government information-gathering programs against their privacy impact should be a top concern; Congress and the public should hear directly from the review board about striking that balance as Congress and the public consider reforms.