3:04 PM EDT, March 13, 2014
When it comes to the nation's intelligence gathering and the National Security Agency in particular, Rep. C.A. Dutch Ruppersberger is no softie.
The Maryland congressman, whose district includes Ft. Meade and the NSA, called NSA leaker Edward Snowden a traitor who "handed terrorists a copy of our country's playbook." Mr. Ruppersberger helped narrowly defeat an amendment to a defense appropriations bill that would have ended the NSA's practice of collecting telephone "metadata" on calls made in the United States, and when President Barack Obama hinted in December that he might curtail the practice, Mr. Ruppersberger joined a bipartisan group of leaders from the House and Senate intelligence communities to defend the program as a "valuable analytical tool." In August, he called the bulk data collection "essential to prevent future attacks on America" and suggested that such a program could have derailed the Sept. 11 attacks, had it been in place at the time.
The fact that he is now proposing to end the program, then, is worth some attention. Today, Mr. Ruppersberger unveiled a plan for the NSA to stop collecting the data and to instead require that the agency request access to it on a case-by-case basis. The information — which includes the time, duration and location of calls — would be kept by telecommunication companies, not the government. As the ranking Democrat on the House Intelligence Committee and the congressman whose district probably includes the homes of more NSA workers than any other, he should have some clout, even as a member of the minority party.
Mr. Ruppersberger said he retains great faith in the NSA's abilities and the integrity of its workers. But he said he concluded that without substantive changes to the metadata program, it might be impossible to get a renewal of the Foreign Intelligence Surveillance Act when it sunsets in 2015.
The details of his proposal will require some close examination, but it essentially returns some of the intelligence community's practices back to what most Americans might have assumed them to be before Mr. Snowden's revelations. We are accustomed to the notion that the government can seek permission to access information about our electronic communications in cases where it can provide reasonable cause for doing so. The fact that it had all that information at its disposal was a major shock and fed a sense of betrayal among many Americans.
The NSA has defended the bulk metadata collection program, saying it allowed the agency to detect patterns and find connections between suspected terrorists. Moreover, officials said the use of the data was governed by assorted protections, including a requirement since January that a secret court sign off on any searches.
But the value of such internal controls is belied by the actions of Mr. Snowden. If he, a low-level contractor, was able to access and remove information about the nation's most secret intelligence gathering programs, just how confident can we be that the NSA follows its own rules or that it is able to safeguard the information from improper use by its own personnel or others?
To that end, Mr. Ruppersberger's proposal to leave the metadata with the telecommunication companies offers at least some reassurance. Thanks to Mr. Snowden, we can't be overly confident that the NSA or other spy agencies couldn't or wouldn't crack into private companies' computer servers to access data they want. But Mr. Ruppersberger is, at least, not suggesting that the phone companies collect or store data any differently than they are already required to do under Federal Communications Commission regulations.
The major question raised by Mr. Ruppersberger's proposal is the extent of checks and balances the NSA will face when requesting the data. He said he does not envision review by the courts before the government requests data from the phone companies, only after, a procedure he argues is necessary because of the urgency often involved in such operations. But that also presents the risk that the standard of requiring a "reasonable articulable suspicion" before accessing the metadata could become overly elastic. And the proposal begs a number of more technical questions, such as how far officials would be allowed to delve into the data when they do meet that standard.
But what's most encouraging is the simple fact that Mr. Ruppersberger is the one proposing such reforms. That, coupled with the outburst this week by Sen. Dianne Feinstein, another traditional ally of the intelligence community, about alleged CIA spying on congressional staffers and their computers offers some hope that the civilians who are supposed to be in charge of America's spies will actually exercise some meaningful oversight.
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