NSA Oversight Bill Introduced By Sen. Leahy May Severely Damage The Ability To Challenge National Security Letters
from the moving-forward-and-backward,-but-ultimately-staying-in-the-same-place dept
The NSA argues that it has plenty of oversight, an argument no one’s buying. Because much of the “oversight” is takes the form of secret courts enforcing secret interpretations of existing laws, it’s hard to accept the NSA’s claims at face value. Sen. Patrick Leahy, someone with a rather spotty record on privacy, is aiming to add more oversight with a new bill. While this would be a good idea, it’s undercut by the damage it does to those seeking to challenge the government’s overreach.
Legislation introduced last month by Patrick Leahy, chairman of the Senate Judiciary committee, alters the ground rules that currently permit U.S. companies to object to a secretive intelligence-gathering technique, called a national security letter, used by the federal government to obtain both individual and bulk customer records.
Part of Leahy’s proposal prevents companies from directly challenging the legality of NSL requests in their local courts, meaning they need to rely on the Justice Department to initiate litigation in a jurisdiction of its own choosing — a dramatic change that raises the cost of a legal challenge and reduces the odds of it succeeding.
Allowing the Justice Department to venue shop is a bad idea, as is relying on the department to initiate challenges to national security letters. This shifts the power back to the government, which would be given the leeway to decide where, when and if it wants to allow an NSL challenge to proceed.
Under the legislation, “the provider has to go to the government to object — and then the government picks the court in the jurisdiction most favorable to them,” said a representative of a U.S. company that’s concerned about the negative impact of Leahy’s bill if it becomes law. “It’s astonishing that anyone would propose to remove the right of a provider to challenge directly, in their home district, an NSL that they view as unlawful.”
The bill (FISA Accountability and Privacy Protection Act) isn’t all bad. It does offer a few nudges in the direction of privacy and accountability, like accelerated sunset dates on data requests and increased public availability of surveillance stats.
Leahy’s bill also provides for speedier challenges of NSL gag orders, but that doesn’t mean much when the challenges are funneled into a Justice Department bottleneck that feeds into a selection of compliant courts. On the plus side, this bill can still be fixed, and rather easily, according to Alex Abdo of the ACLU’s National Security Project.
I can see how it might allow the government to forum shop by simply conducting its national security investigations in a favorable district. I doubt that was the intent of it, but I agree that there at least two easy fixes: eliminating the second jurisdictional hook or making clear that recipients can themselves initiate the review.
Putting the right to challenge the government in the government’s hands is seldom beneficial to those raising the challenges. Whether this language will be altered remains to be seen. Leahy co-sponsored a bill aimed at killing the secret law that enables the NSA’s surveillance efforts, but also has a few privacy-related legislation skeletons in his closet, including CALEA, the Protect-IP Act and “significant portions” of the PATRIOT Act. This track record doesn’t exactly bode well for companies and citizens challenging the government.