Privacy Board Urges New Criteria for Secrecy

01.24.14 | 4 min read | Text by Steven Aftergood

The public controversy that erupted over NSA bulk collection of Americans’ telephone records was a clear sign, if one were needed, that the boundaries of government secrecy had been drawn incorrectly, and that the public had been wrongly denied an opportunity to grant or withhold its consent in such cases.

To remedy this systemic problem, the Privacy and Civil Liberties Oversight Board said in a new report yesterday that the government needs to develop new criteria for secrecy and openness.

“The Board urges the Administration to commence the process of articulating principles and criteria for deciding what must be kept secret and what can be released as to existing and future programs that affect the American public” (Recommendation 11).

But translating this imperative into practice remains a challenge.

“Generalities about the value of transparency do not go far in answering the hard questions of what can be disclosed and what must remain secret,” the Board properly observed. “Instead, progress may best be achieved by considering specific problems,” such as intelligence surveillance policy.

With that in mind, the Board sketched out illustrative examples and options that could guide future declassification and disclosure decisions. Experience has already shown, the report said, that “it is possible to describe [intelligence] practices and policies publicly, even those that have not been otherwise leaked, without damage to national security or operational effectiveness.”

More specifically, the Board report said the Administration should start to address transparency with a “public articulation of the legal authorities under which it conducts surveillance affecting Americans,” the very point at which the current controversy began (Recommendation 12).

However, a minority of the Board did not endorse this particular recommendation. “I do not believe that an intelligence program or legal justification for it must necessarily be known to the public to be legitimate or lawful,” said dissenting Board member Rachel Brand.

The lack of Board unanimity on this and other points “really weakens its recommendations and undermines the role that we envisioned it would play,” said Sen. Susan Collins in the Wall Street Journal.

But from another point of view, the divided views of Board members are a strength, not a weakness. The fact that thoughtful people reviewing the same factual record can arrive at divergent conclusions is instructive, and the split may accurately reflect larger divisions among members of the public. Advocates and editorial writers seem to be strangers to doubt, but others may not be. Confronting the opposing views of Board members, readers are invited and compelled to think for themselves.

Overall, the Privacy and Civil Liberties Oversight Board demonstrated its utility as a public oversight body, helping to fill the void left by congressional and judicial oversight that sometimes seems cursory by comparison.

The Board (majority) presented an incisive critique of current surveillance practices that is lucid and nuanced, clarifying the legal and policy issues involved without hyperbole or vitriol.

“The Board concludes that Section 215 [of the USA Patriot Act] does not provide an adequate legal basis to support this [bulk collection] program. Because the program is not statutorily authorized, it must be ended,” the report said.

Even in the absence of overt abuse, it was argued, the mere collection of American telephone records in bulk is an infringement on privacy and other civil liberties. “Permitting the government to routinely collect the calling records of the entire nation fundamentally shifts the balance of power between the state and its citizens.”

While there are procedures in place to limit the official use of such records, “in our view they cannot fully ameliorate the implications for privacy, speech, and association that follow from the government’s ongoing collection of virtually all telephone records of every American. Any governmental program that entails such costs requires a strong showing of efficacy. We do not believe the NSA’s telephone records program conducted under Section 215 meets that standard.”

If the bulk collection program were demonstrably effective in saving lives, the report implied, then certain infringements on privacy might well be warranted. But that is not the case, the Board majority concluded.

“Given the limited value this [bulk collection] program has demonstrated to date… we find little reason to expect that it is likely to provide significant value, much less essential value, in safeguarding the nation in the future,” the Board report said.

Of course, that is a judgment, not an empirical fact. Others can and do disagree, including two of the members of the Board itself.

“Whether the [bulk collection] program should continue boils down to whether its potential intrusion on privacy interests is outweighed by its importance to protecting national security,” wrote Rachel Brand, precisely. This too is a judgment, and it explains why disagreement over the program persists.

But on the need to rethink current secrecy practices, at least, there is consensus, among members of the Board and beyond.

John C. Inglis, in his final days as deputy director of the National Security Agency, told National Public Radio that he now realized that existing public disclosure practices were “insufficient.”

Did he wish NSA had made an effort years ago to disclose the bulk collection program in a way that the public could debate it?  “In hindsight, in hindsight,” he told NPR’s Steve Inskeep.

The task now is to apply the lessons of hindsight to present-day national security secrecy policies, and not only with regard to NSA surveillance activities.

“What we’re going to have to do as a nation, and particularly as an agency, is to rebalance, right, the balance that we have struck between security, secrecy and transparency,” Mr. Inglis said, in an NPR interview published January 10.