Page 161 - Privacy in a Cyber Age Policy and Practice

BALANCING NATIONAL SECURITY AND INDIVIDUAL RIGHTS 149

been no systematic abuse, there has been no political abuse, it has been
minor, very minor.” 198
To prevent further loss of public trust, it is important that the NSA
uphold its promise to “identify problems at the earliest possible moment,
implement mitigation measures wherever possible, and drive the numbers
down.” 199 This is particularly true given that, according to the head of the
FISC, that court relies “upon the accuracy of the information that is provided
[by the NSA]” and “does not have the capacity to investigate issues of
noncompliance.” 200
The second serious charge is that the NSA has misled the public and
watchdogs regarding the extent and nature of its program. An FISC judge
charged the government with providing misleading statements, noting that
“the government has now advised the court that the volume and nature
of the information it has been collecting is fundamentally different from
what the court had been led to believe.” 201 In a particularly sharply worded
footnote, the judge, John Bates, stated, “The court is troubled that the gov-
ernment’s revelations regarding NSA’s acquisition of Internet transactions
mark the third instance in less than three years in which the government
has disclosed a substantial misrepresentation regarding the scope of a
major collection program.” 202
Similarly, Judge Reggie B. Walton accused the NSA of having repeat-
edly provided the FISC with misinformation with respect to how the
telephone metadata was being used. 203 Walton wrote that the “government
has compounded its noncompliance with the court’s orders by repeatedly
submitting inaccurate descriptions of the alert list process” and that it “has
finally come to light that the F.I.S.C.’s authorizations of this vast collection
program have been premised on a flawed depiction of how the N.S.A. uses
the phone call data.” 204 Given these findings, one can either hold that these
programs ought to be canceled, which is the position taken by a considerable
205
number of members of Congress on both the right and the left, or one can
conclude that the NSA needs to be more closely monitored. The preceding
discussion suggests that, given that threat level and the need for enhanced
security measures, one at least should closely test the thesis that a better
monitored NSA could be brought to fully function within the law before
one considers canceling either the phone surveillance or PRISM programs.
One can accord the government license to conduct surveillance of the pop-
ulation commensurate with the degree to which its surveillance programs
are themselves subject to surveillance. This approach is next explored.
There are two major ways to implement such “guarding of the guardians”:
increasing transparency and increasing accountability. While I cannot
stress enough that both have a contribution to make, I shall attempt to
show that enhanced accountability should be relied on much more than