On November 3, Britain’s head of the Government Communications Headquarters (GCHQ) published an opinion piece in the Financial Times, noting that technology companies, such as Twitter, Facebook, WhatsApp, (and implying Google and Apple), ought to comply with governments to a greater extent to combat terrorism. When tech companies further encrypt their devices or software, such as what Apple has recently released with the iPhone 6, or what WhatsApp has accomplished with its software, GCHQ chief Hannigan argues that this is tantamount to aiding and abetting terrorists. GCHQ is the sister equivalent of the US’s National Security Agency (NSA), as both are charged with Signals Intelligence and information assurance.
Interestingly, Hannigan’s opinion piece comes only weeks before the US Senate voted on whether to limit the NSA’s ability to conduct bulk telephony meta-data collection, as well as reform aspects of the NSA’s activities. Two days ago, this bill, known as the “USA Freedom Act,” failed to pass by two votes. While Hannigan stressed that companies ought to be more open to compliance with governments’ requests to hand over data, the failure of the USA Freedom Act strengthened at least the US government’s position to continue is mass surveillance of foreign and US citizens. It remains to be seen how the tech giants will react.
In the meantime, the bill also sought, amongst other things, to make transparent the amount of requests from governments to tech companies, to force the NSA to seek a court order from the Foreign Intelligence Surveillance Court (FISC) to query the (telecom held) data, and to require the NSA to list the “specific selection term” to be used while searching the data. Moreover, the bill would have also mandated an amicus curiae, or “friend of the court,” in the FISC to offer arguments against government requests for searches, data collection and the like, which it currently lacks. Much of these reforms were welcomed by tech companies like Google and Apple and also were suggested in a 2013 report for the White House on NSA and intelligence reform.
Many of the disagreements over the bill arose on two lines: that the bill hamstringed the US’s ability to “fight terrorists,” and that the bill failed to go far enough in protecting the civil liberties of US citizens. This was because the bill would have reauthorized Section 215 of the PATRIOT Act (set to end in 2015) to 2017. Section 215 permits government agents, such as the FBI and the NSA to compel third parties to hand over business records and any “other tangible objects” whenever the government requests them in the pursuance of an “authorized investigation” against international terrorism or clandestine intelligence activities. In particular, Section 215 merely requires the government to present specific facts that would support a “reasonable suspicion” that the person under investigation is in fact an agent of a foreign power or a terrorist. It does not require a showing of probable cause, only a general test of reasonableness, and this concept of reasonableness is stretched to quite a limit. The democratic support for the bill comes most strongly from Senator Dianne Feinstein (D- Calif), who is reported to have said, “I do not want to end the program [215 bulk collection],” so “I’m prepared to make the compromise, which is that the metadata will be kept by the telecoms.”
Where, then does the failure of this bill leave us? In two places, actually. First, it permits the NSA to run along on with the status quo. Edward Snowden’s revelations of mass surveillance appear to have fallen off of the American people’s radar, and with it, permitted Congress to punt on the issue until its next session. Moreover, given that the next session is a Republican dominated House and Senate, there is high probability that any bill passed will either reaffirm the status quo (i.e. reauthorize Section 215) or potentially strengthen the NSA’s abilities to collect data.
Second, this state of affairs will undoubtedly strengthen the position of Emperor Mike Rogers. Admiral Mike Rogers is the recent replacement of General Keith Alexander, the head of both the NSA and US Cyber Command (Cybercom). I refer to the post holder as “Emperor” not merely due to the vast array of power at the hands of the head of NSA/Cybercom, but also because such an alliance is antithetical to a transparent and vibrant democracy that believes in separations between its intelligence gathering and war making functions. (For more on former Emperor Alexander’s conflicts of interests and misdeeds see here.)
The US Code separates the authorities and roles for intelligence gathering (Title 50) from US military operations (Title 10). In other words, it was once believed that intelligence and military operations were separate but complementary in function, and were also limited by different sets of rules and regulations. These may be as mundane as reporting requirements, to more obvious ones about the permissibility of engaging in violent activities. However, with the creation of the NSA/Cybercom Emperor, we have married Title 10 and Title 50 in a rather incestuous way. While it is certainly true that Cybercom and the NSA are both in charge of Signals Intelligence, Cybercom is actively tasked with offensive cyber operations. What this means is that there is serious risk of conflicts of interest between the NSA and Cybercom, as well as a latent identity crises for the Emperor. For instance, if one is constantly putting on and taking off a Title 10 hat for a Title 50 hat, or viewing operations as military operations or intelligence gathering, there will eventually be a merging of both. That both post holders are high ranking military officers means that it is most likely that the character of NSA/Cybercom will be more militaristic, but with the potential for him to issue ex post justifications for various “operations” as intelligence gathering under Title 50, and thus subject to less transparent oversight and reporting.
One might think this fear mongering, but I think not. For example, if the Emperor deems it necessary to engage in an offensive cyber operation that might, say, change the financial transactions or statements of a target, and that part of this operation is for the US’s role to remain secret. This operation would be tantamount to a covert action as defined under Section 413b(e) of Title 50. Covert actions have a tumultuous history, but suffice to say, the President can order them directly, and they have rather limited reporting requirements to Congress. What, however, would be the difference if the same action were ordered by Admiral Rogers in the course of an offensive cyber operation? The same operation, the same person giving the order, but the difference in international legal regulations and domestic legal regulations is drastic. How could one possibly limit any ex post justification for secrecy if something were to come to light or if harm were inflicted? The answer is there is no way to do this with the current system. This is because the post holder is simultaneously a military commander and an intelligence authority.
That the Senate has refused to pass a watered down version of NSA reform only further strengthens this position. The NSA is free to collect bulk telephony meta-data, and, moreover, it is free to hold that data for up to five years. It can also query the data without requiring a court order to do so, and is not compelled to make transparent any of its requests to telecom companies. Furthermore, one of the largest reforms necessary—that of separating the functions of the NSA and Cybercom—continues to go unaddressed. The Emperor, it would seem, is still free to do what he desires.