Americans’ Privacy and the Feckless Six

The U.S. Department of Justice (DOJ) has been aggressively dithering on privacy since at least 2008, when it allowed the National Security Agency (NSA) to capture metadata from telephone calls. The DOJ talks a brave “civil rights” game in public but behind the scenes it invades the publics’ and even news reporter’s privacy whenever senior DOJ lawyers find it convenient.

DOJ huddled in a corner for nearly a decade, fully aware of the NSA’s bulk collection to shred American’s expectation of privacy.  In the last few weeks, DOJ has begun emerging from its self-protecting cocoon likely because the expiry of the Patriot Act’s Section 215 (which empowers the NSA’s bulk collection) looms near. Instead of protecting essential privacy, it offers a vacuous pronouncement that drones ought not violate privacy or civil rights.

On behalf of the American public, the Foreign Intelligence Security (FISA) court strikes a “hear no evil see no evil” pose. In its proceedings, it listens only to the government, declares all information it touches to be secret, and grants 99.97% of the government’s requests. (NO, that’s not a sign of excellent lawyering by the government). Despite a semblance of legal oversight intended to convince the public that a real court is reining in NSA excesses, the FISA court adds no protection to the public’s privacy.

A few days before the expiry of Section 215, the House wants a replacement authorization that prevents bulk collection and storage by NSA, but allows NSA to request targeted searches that the telephone companies would conduct, presumably under the FISA court’s order. The Senate would rather extend the expiry date of Section 215 by a few more weeks so it left town until a day before the expiry.

Neither the House nor the Senate addresses the two central issues: the actual balance between intelligence needed for security versus the privacy lost by innocent parties due to crude collection techniques; and the lack of public oversight for the FISA court. Telling voters that some security costs some privacy may be a daunting task for a politician (not because Ben Franklin disagreed) but it needs to be said.

The Federal Communications Commission (FCC) asserts that its adoption of Title II as the regulatory regime for Internet service providers (ISP) reinforces its authority to control ISPs’ treatment of Internet users’ privacy – analogous to privacy protections that telephone companies must apply under Title II to telephone users’ metadata and message content. The privacy the FCC seems focused on is the personally identifiable information and sequence of websites people visit, information that is attractive to marketers but which is already off limits unless users agree to its collection. What Title II adds to the FCC’s layer of privacy protection is scant, if anything.

Clearly in the issues of the public’s communications privacy, the FCC would be trumped by the FISA, NSA, DOJ, Congress and perhaps even the FTC.  The Federal Trade Commission (FTC) has asserted its enforcement authority as “the chief federal agency on privacy policy since the 1970s.” It is not one of the Feckless Six.

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