National Security Agency (NSA) of United States (U.S.) is facing increased allegations of illegal and unconstitutional e-surveillance of U.S. and foreign nationals. The methods used by NSA to do e-surveillance range from traditional telephone taping to use of radio wave and malware. On the judicial side, gag orders are frequently used by Federal Bureau of Investigation (FBI) and other agencies of U.S. to prohibit disclosure of details about National Security Letters (NSLs) that are very frequently issued in U.S.
Clearly privacy rights in the information era are very difficult to protect in these circumstances. Similarly, civil liberties protection in cyberspace is need of the hour that is neglected by countries across the world with great impunity. When U.S. companies agitated and showed their displeasure with the existing system, the Department of Justice (DOJ) announced new reporting methods for national security orders.
The White House was forced to interfere in this situation that has crossed all the limits of constitutionality. President Barack Obama in January asked U.S. intelligence agencies and the attorney general to report by March 28 on alternatives for revamping the program in a way that would take it out of the NSA’s hands. Under the current program, the NSA collects millions of U.S. phone records from three phone companies, which former officials have identified as AT&T Inc., Verizon Communications Inc. and Sprint Corp. Obama administration officials have sought to preserve the collection of phone records in a way that raises fewer concerns about privacy.
The White House has been provided four options for restructuring the NSA’s phone-surveillance program. The Office of Director of National Intelligence and the Justice Department have provided these options ahead of scheduled deadline.
One way of doing that would have the phone companies retain the data, officials said. The NSA would then tell the companies when it needs searches of call records concerning specific phone numbers the agency believes are connected to terrorism. The companies would provide the results to the NSA. Under this model, the NSA would only collect the data that comes in response to the search, rather than millions of unrelated American phone records.
Several lawmakers have proposed legislation on Capitol Hill that would take this approach. But telecommunications companies oppose this option. Phone companies likely would demand liability protection and possibly other conditions to avoid outside demands for data—for instance, for run-of-the-mill legal cases such as divorce proceedings. Already, some criminal defendants have sought access to the NSA records, claiming the data could help show their innocence.
The phone-company option is also opposed by the chairman of the House intelligence committee, Rep. Mike Rogers (R., Mich.), who told The Wall Street Journal this week that the proposal doesn’t have enough support for committee approval and a House floor vote.
The second option suggests that a government agency other than the NSA can hold the data. Candidates for this option could include the FBI. It has also been suggested that the custody of the program may be given to the Foreign Intelligence Surveillance Court (FISA), which oversees the phone-data and other NSA surveillance programs. However, the FISA Court is not willing to shoulder the additional responsibilities that are full of controversies.
A third option would be for an entity outside the phone companies or the government to hold the data. This approach has been criticised by privacy groups who say such a third party would just become an extension of the NSA and would provide no additional privacy benefit.
It seems none of the three options for relocating the data has been able to gain a consensus. If the above three options are not accepted, this would leave the only possible option to be explored. In such a scenario the fourth option is to abolishing the program altogether, which would be a setback for intelligence agencies and other backers of the surveillance effort.
If the fourth option is exercise, the investigative capabilities of the law enforcement agencies and other agencies of U.S. would be required to be significantly enhanced to meet the demands of modern day crimes. U.S. agencies must understand that e-surveillance is not a substitute for effective cyber skills and investigation capabilities.