Effort to reform NSA is important -- and doomed to fail

Senators reveal meaty reform proposal, but are such efforts too little, too late for our surveilled world?

By Natasha Lennard

Published September 26, 2013 3:15PM (EDT)

This year's slew of revelations about the NSA's hoarding and intrusion into Americans' communications was bound to give rise to a congressional reform proposal or two. The question now is whether any such reforms will be successful and significant, or merely superficial.

While the White House -- with its NSA review panel brimful of administration insiders -- seems set on little more than Kabuki, Congress' privacy-concerned cohort seems committed to something more meaty.

On Wednesday, the Senate's bipartisan brigade of self-appointed Fourth Amendment defenders (Sens. Rand Paul, Ron Wyden, Mark Udall and Richard Blumenthal) revealed an NSA reform bill aimed to mitigate the spy agency's data hoarding complex. The bill -- the most comprehensive proposed to date -- would prohibit the NSA's controversial bulk collection of Americans' phone records under section 215 of the Patriot Act.

The bill (named the Intelligence Oversight and Surveillance Reform Act) would, the Guardian reported, "also prevent a similar data trawl of internet communication records, which was stopped in 2011, and definitively close a so-called 'backdoor' that potentially enables the NSA to intercept the internet communications of Americans swept up in a program protected by Section 702 of the of the Fisa Amendments Act." The bill would also enable tech companies to disclose how many court orders they receive for their users' data -- something online Leviathans like Facebook and Yahoo have been pushing for since Snowden's leaks came to light. In line with the absence of political will in regards to limiting surveillance of foreigners, the bill is mute on this matter.

The proposals lay down the gauntlet for significant reform as a series of congressional hearings into the NSA's surveillance powers begin Thursday. "The disclosures over the last 100 days have caused a sea change in the way the public views the surveillance system," said Wyden, adding, "We are introducing legislation that is the most comprehensive bipartisan intelligence reform proposal since the disclosures of last June."

And Wyden is correct: Most Internet and cellphone users in this country had little or no idea of the extent to which the government was hoarding and could access data on our every communication and connection. This, despite warnings from NSA whistle-blower William Binney last year and public comments from the likes of the CIA’s chief technical officer, Gus Hunt, who in March said in a speech, "Since you can’t connect dots you don’t have, it drives us into a mode of, we fundamentally try to collect everything and hang on to it forever."

Comments like Hunt's -- echoed almost word for word by NSA director Keith Alexander in his congressional testimony, where he defended his agency's ability to collect and "connect the dots" -- shed light on the ideology and essential structure of contemporary national security intelligence. Even formidable reform proposals are unlikely to undo the hoarding and sifting style of spycraft that structurally puts U.S. communications at risk of capture in the surveillance dragnet.

And here's the catch: Any reform proposals like those in the Intelligence Oversight and Surveillance Reform Act, even if inscribed into law, will be a frayed leash on the surveillance state's steady creep forward. The surveillance state is, after all, not just the NSA and official government spy agencies. It is a nexus connecting Silicon Valley, Washington and the surveilled subjects who continually and voluntarily provide vast swaths of data about themselves through smartphones, social media and more.

Before the unveiling of the latest reform proposals, I wrote last week, "How to push back against totalized surveillance is a question perhaps impossible for surveilled subjects to answer — it runs too deep, it’s how we live. We may well — and rightly — advocate for increased regulation, government transparency and the like. But, through a host of apparatuses we have become subjects ripe for surveillance, a state of affairs that cannot drastically change without rethinking how we communicate, move; the way we live."

Efforts like those of Wyden, Paul and co. are important -- at the very least, their reform efforts represent a sliver of Congress attempting to perform its duty as a check on sprawling executive overreach and its attendant judicial acquiescence. Realistically, though, the NSA reform proposals that go through will be weakened and at large cosmetic; at best a fragile floodgate against an ocean surging toward a totalized surveillance state. It's how we live; it runs too deep.

Natasha Lennard

Natasha Lennard is an assistant news editor at Salon, covering non-electoral politics, general news and rabble-rousing. Follow her on Twitter @natashalennard, email nlennard@salon.com.

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