News, Developments, and Insights

high-tech technology background with eyes on computer display

NSA Surveillance

In reading the mainstream media accounts, one would get the impression that Senator Specter’s NSA surveillance bill is a compromise with the Administration, a way to limit Executive power, and that the Administration is reluctantly capitulating to judicial oversight.

New York Times: “Bush Would Let Secret Court Sift Wiretap Process.” The article states that the “proposed legislation represents a middle-ground approach.”

Reuters: “Bush agrees to court review of spy program”

LA Times: “Bush Agrees to Review of Domestic Spying Program: The tentative proposal would let a secret court decide whether the NSA can eavesdrop on Americans without first obtaining warrants.”

Associated Press: “Bush Agrees to Eavesdropping Court Review”

Washington Post [link no longer available]: “Bush Compromises On Spying Program: Senate Bill Would Permit Court Review”

How can it be that they all seem to have almost identical news stories? Did they all get together to write the same story? The content of these stories is quite similar — they all seem to be based largely on interviews with Specter and his staff. Occasionally, there’s a quick soundbite from Senators Leahy or Feingold, but by and large, the mainstream media accounts are remarkably the same. It is as if Senator Specter and the Bush Administration’s PR team had written the stories.

The articles barely contain a whiff of what the blogosphere contains, which paints a very different picture of Specter’s bill.

Orin Kerr: “Maybe I’m missing something, but my sense is that it largely tracks the David Addington/John Yoo approach to Article II; that is, it would have Congress back away from the claims to authority that Congress made in 1978 that the Administration has suggested it believes are unconstitutional because they infringe on the Commander-in-Chief power.”

Marty Lederman: “So what does Specter do in the wake of the momentous Hamdan decision, which put all the cards in Congress’s hands? He introduces a bill, with Administration blessing, that gives the Administration everything it ever wanted, and much, much more. Indeed, come to think of it, the Specter bill is basically the sort of legislation one would expect if the Supreme Court had just held that Congress is powerless to enact legislation constraining the President’s “inherent” war powers — something that not a single Justice in Hamdan so much as suggested.”

Steve Vladeck: “The bill is remarkable in a number of respects, including that it does not require the President to submit the [NSA surveillance program] to the FISA Court, but does require transfer of a whole host of other actions to the FISA Court, where proceedings are ex parte and often secret.”

Hmmm. So the Bush Administration agrees to do what the law already requires it to do. It’s like a bank robber agreeing to set up a legitimate bank account. But what’s more, the bill doesn’t even require the Administration to go to the FISA court; and it gives the Administration a ton of new powers. To return to the bank robber analogy, it’s like authorizing the robber to continue to steal if he wants to; and providing him with a special entrance to the bank and a personal set of keys to the vault.

Of course, the mainstream media need not be as extreme as I am in describing the bill, but perhaps just a tiny bit of balance might be in order. At least provide a more complete account of the bill, not one that comes with the incredible spin that Specter and the Administration have put on it. Perhaps consult an independent expert or two. I thought the media’s job is to do some independent reporting, not just copy down what they’ve been told. I guess I was wrong.

Originally Posted at Concurring Opinions

* * * *

This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

If you are interested in privacy and data security issues, there are many great ways Professor Solove can help you stay informed:
LinkedIn Influencer blog

TeachPrivacy Ad Privacy Training Security Training 01