Rolling Back Surveillance – What’s The Catch?


Supporters of ending the practice of bulk data collection by the NSA and enacting safeguards on requesting permission to monitor the communications of private citizens have found a very unexpected ally in Democratic congressman Dutch Ruppersberger, the NSA’s hometown representative and one of the agency’s key supporters.

The Guardian reports:

This week, the top Democrat on the House intelligence committee, Congressman Dutch Ruppersberger, who represents the Maryland district home to the NSA’s Fort Meade headquarters, came out in favor of a remedy for the controversial surveillance.

Ruppersberger, in interviews with the Washington Post, National Journal and Politico, said he was working to craft a proposal that would require court orders for government requests for Americans’ phone records – perhaps on an individual basis – from the telephone companies, without requiring the companies to expand retention of their customer records beyond current practice.

This has rightly aroused suspicion from some civil libertarians – partly because Ruppersberger admits that elements of his proposal still remain to be “worked out” (read: emasculated before coming up for a vote) and partly because Ruppersberger’s track record on standing up to his district’s largest employer is predictably weak.

Others, however, seem to take his proposal in good faith:

On the other hand, sources said, Ruppersberger’s evolving position represents what one called a “huge step forward” toward an outright end to bulk domestic metadata collection. Ruppersberger’s credibility with the NSA might also be an asset for such an effort.

I’m sceptical. Though any politician turning away from embracing the unchallenged omniscience of the intelligence services is a good thing, we should avoid ascribing too many noble motivations to those who do so. This can be difficult, given the serious way in which such lawmakers are suddenly discussing the issue. Here, Ruppersberger could pass for a concerned member of the ACLU were it not for his voting record and numerous other public statements to the contrary:

“I believe that the Foreign Intelligence Surveillance Act must be reformed. We must improve the American public’s confidence in, and perception of, our national security programs, by increasing transparency, strengthening oversight, and safeguarding civil liberties,” Ruppersberger said.

“I also believe that any proposal to reform the Foreign Intelligence Surveillance Act must preserve critical intelligence tools that protect our country and its allies.  I am concerned with any approach that would eliminate this important intelligence tool and make the country more vulnerable to terrorist attacks, without providing a workable alternative.”

Ruppersberger’s decision and newfound concern about civil liberties could well be no more than what Glenn Greenwald has called the ‘Angela Merkel’ effect – a term used to describe a phenomenon where a public civil liberty infringement is tolerated quite happily by a public official until they realise that they too have become victims (in Merkel’s case, she was largely silent on the fact that the NSA had been intercepting the communications of German citizens but incandescent with rage that her own private communications might also have been monitored).

Senator Dianne Feinstein of California also falls into this category – long an NSA apologist and advocate for massive secret public surveillance, but suddenly up in arms when the work of her own committee was monitored by the CIA. While it would be nice to believe that a dyed-in-the-wool surveillance hawk such as Feinstein has undergone some kind of road-to-Damascus style conversion to the cause of privacy rights, sadly the greater likelihood is that hypocrisy and political calculation played the larger part in her Senate floor outburst.

Not everyone is convinced
Not everyone is convinced

The likelihood is that the most hawkish, reflexively pro-surveillance lawmakers realise that the political sands have shifted beneath their feet, and have deemed it wise to be seen giving a little ground now to avoid complete defeat in the future.

In Ruppersberger’s case, that defeat would be epitomised by the passing of the rival USA Freedom Act, sponsored by Wisconsin Rep. Jim Sensenbrenner, which goes further in setting stricter standards for collecting communications data on individuals, standards that would need to pass a certain burden of evidence in order to gain a court order:

With the details still undetermined in Ruppersberger’s proposal, it is difficult to know how far the new effort would go in requiring court-ordered individual suspicion to access phone records, as well as requiring a specific “relevance” connection to an ongoing terrorism investigation, as required in the Patriot Act and the proposed USA Freedom Act – without which, privacy advocates argue, would leave the door open to dubious searches of government records.

While the gradual conversion – or defensive rearguard action – of politicians like Dutch Ruppersberger and Dianne Feinstein can be cautiously welcomed, the public should never forget that that if these people had their way, we would not be having a national conversation about government surveillance and civil liberties at all.

National security fanatics from both parties have lined up to condemn Edward Snowden for whistleblowing and making the public aware of what the government had been doing, going so far as to call him a traitor and make up all manner of ludicrous unproven assertions to cast doubt on his moral integrity.

If the Ruppersbergers and Feinsteins had their way, the American political debate would continue to bounce back and forth between Obamacare, Benghazi and 2016 speculation because we simply would not know about bulk data collection, the PRISM program, back door access into the servers of our most commonly used internet applications or any of the other “protective measures” that the government felt the need to take without glancing at the Constitution or mentioning what they were doing to the people.

So by all means, let us welcome those genuine converts to the cause of civil liberties. But let’s hold off on the ticker-tape parade in their honour just a little while, until their motives become clearer with time.

UPDATE – 15/03/2014: Whatever the limitations of the debate on surveillance may be in the United States, let us be grateful at least that a debate is taking place at all. In the United Kingdom, by contrast, there has been no apology or sign of contrition from David Cameron, no real admission that the British government had overstepped the mark, and certainly no real political movement underway to start properly overseeing the British security services.