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In an impressive display of tact, the word “Snowden” does not appear in the report of the U.S. President’s Review Group on Intelligence and Communications Technologies. Nevertheless, the former system administrator’s revelations demanded a serious response. The NSA Report
certainly provides that, with 46 far-reaching
recommendations.
The report signals the need for correction. Following 9/11, the USA
PATRIOT Act (2001) was rushed
into law, an early fusillade in the
war on terror. Combined with
the amended (2008) Foreign
Intelligence Surveillance Act—
“scrutinized” by the Foreign Intelligence Surveillance Court,
whose procedures appear unbalanced and unchallenged—we
have seen the emergence of new
behaviors, such as “collect everything, minimize later.” There is
now no need to show probable
cause, and retroactive immunity
is provided for companies that
provide the bulk data. To many,
these developments appear to
undermine the American way of life while
claiming to defend it.
The report is a brilliantly readable guide
to the world Snowden revealed; its clarity
of analysis, proceeding from fundamental
principles, impeccable. Its starting point is
the U.S. Constitution, which seeks to “pro-
vide for the common defense … and secure
the Blessings of Liberty to ourselves and our
Posterity.” The authors firmly reject the view
that these positions conflict, arguing that
“privacy is a central aspect of liberty, and it
must be safeguarded.”
We need to adapt surveillance practice to
a multipolar world. The report argues that
national security has to be balanced not
only against privacy but also against other
functions of government. The United States
has to promote relations with its allies and
to ensure that American firms are not un-
necessarily disadvantaged abroad. Vital es-
pecially from the point of view of science
and engineering is the need to maintain the
integrity of the Internet and the Web. These
global sociotechnical systems cannot func-
tion without trust in their integrity. When
social networks have been appropriated by
Russian oligarchs and artificially created by
the United States to sow dissent in Cuba, it
is obvious that rich information can be used
against us or a whole nation. In this context,
the recommendation to minimize the use
government can make of legally acquired in-
formation is welcome. Rumors swirl about
backdoors inserted into security technology
at the behest of the U.S. (and Chinese) in-
telligence communities. The group’s report
is deadpan on this, writing in generalities.
It is worth pointing out that the practice, if
indeed prevalent, is borderline insane for all
parties—a form of mutually assured destruc-
tion that may ultimately have to be limited
by treaties akin to those restricting other
technologies.
Foreign states have been outraged (
however hypocritically) by spying on their leaders and commercial companies; one suspects
little of that was terrorism-related. In response, Brazil was within an ace of insisting
that data about Brazilians should be held on
servers in Brazil, and even so its Marco Civil
da Internet (2014) extends Brazilian law to
cover any online service used by Brazilians.
The European Union might react strongly,
too, while Vladimir Putin has argued that
the Internet is a CIA project. The balkaniza-tion of the Internet has never felt closer.
Against this background, the report’s discussion of the treatment of non-U.S. persons
is important, arguing that on the Internet
the national-international distinction has
virtually collapsed. The recommendation
that disseminating information about non-U.S. persons only be done to protect U.S.
national security is powerful and welcome.
Would any president outlaw diplomatic or
commercial spying? Probably not, but the
review group makes a strong case. The application of the Privacy Act of 1974 to non-U.S.
persons in the absence of specific suspicions
is appropriate in the age of the cloud and
consistent with the current policy of the
Department of Homeland Security. It would
help dispel the corrosive distrust, which is so
damaging to the Internet.
The report is very sound on the invasive nature of metadata and
the uselessness of much of this
intelligence. The controversial
recommendation to consider a
civilian National Security Agency
director follows from the nonobvious observation that recent
intelligence-gathering has been
driven by combat in Iraq and
Afghanistan. But counterterror-ism is not always a military matter, and so the recommendation
logically reasserts the primacy of
nonmilitary considerations.
The report is necessarily handi-
capped by the impossibility of
predicting the future balance of
power among president, Con-
gress, media, and the so-called intelligence-
industrial complex, and so it is hard to say
that the recommended institutions will suc-
ceed where the current ones have failed.
Recommendations for transparency are
weakened by acceptance of the imperative
to protect the integrity of intelligence pro-
grams. Doesn’t this just beg the question?
Government is many actors, not one, and
we shouldn’t underestimate their tendency
to fight against one another in pursuit of in-
dividual targets. But overall separation and
limitation of powers was at the heart of the
U.S. Constitution. The vigilance that “is re-
quired in every age to maintain liberty” has
to be applied not only to our enemies but
also to those who would protect us. Govern-
ments around the world would do well to
reflect on the principles that underpin The
NSA Report and relate them to their own
intelligence-gathering activities.
SURVEILLANCE OVERSIGHT
10.1126/science.1256398
The reviewers are at the Web and Internet Science Group,
Electronics and Computer Science, University of Southampton,
Highfeld, Southampton SO17 1BJ, UK. E-mail: kmo@ecs.soton.
ac.uk
The NSA Report
Liberty and Security in
a Changing World
The President’s Review
Group on Intelligence and Communications
Technologies. Richard A. Clarke, Michael J.
Morell, Geofrey R. Stone, Cass R. Sunstein,
and Peter Swire
Princeton University Press, 2014. 283 pp.
Who guards
the guardians?
By Kieron O’Hara and Nigel Shadbolt
