It's time for some FISC-al responsibility

On 6th June, the Guardian and the Washington Post revealed that the National Security Agency (NSA) was authorised by a “secret court” to gather the telephone records of Verizon customers. Later they announced that the PRISM scheme has seemingly allowed the NSA to gather online communications from users of sites like Google and Facebook.

The outrage provoked has been enormous with the US establishment being compared to the Stasi. Sales of George Orwell’s dystopian novel Nineteen Eighty-Four, with its depiction of Big Brother and the Thought Police, increased by 5,771 per cent from 6th-11th June.

People are rightfully worried about their privacy. But the way the revelations have been framed by the media perversely appear to be focusing attention away from these worries.

Indeed the hyperbole about spying is indicative of the general standard of reporting on the issue. It is not news that the NSA collects information on phone calls both within the USA and abroad. This has been happening for years. For a limited time, phone companies retain certain billing information about their customers, things like call duration, time and possibly location. This is known as “metadata” and does not include the actual content of the calls or details about the caller. The NSA simply had a court order asking that Verizon hand over this data before it was deleted, presumably for national security purposes.

The ability to access the content of calls is judged by the Foreign Intelligence Surveillance Court (FISC). This is where it gets murky. There is little transparency or accountability in the FISC process. Targets of government-ordered investigations are not represented in hearings, and the standard for proving that the information is “relevant”—and therefore worth eavesdropping on—is low. Consider that between 2010 and 2012 all but one of the 5,180 applications for surveillance and physical searches were approved by FISC. Though this, too, is not a particularly new revelation, it is what our attention should be focused on rather than the overblown fears about spying.

That the FISC process is so secretive endangers the legitimate justification for the NSA having access to a “data mine” of private information used to protect national security. Indeed, it compromises the tacit agreement between government and citizens that a degree of privacy can be traded for national security.

Added to this are the revelations about the NSA’s much more mysterious PRISM surveillance programme. The programme is claimed to be able to monitor all live and stored communications from users of companies such as Google and Facebook so long as at least one participant is outside America. No one is yet clear on how exactly PRISM works—how many people are affected, how involved the internet companies are, and how the NSA uses this information. But this, in itself, raises the problem of secrecy again.

Any counterterrorism apparatus needs the trust of citizens in order for it to continue gaining access to “data mines” which aid the safeguarding of national security. What poisons relations between government and citizens is not the spying alone, but the retention of such high levels of secrecy around it. After all, if it is so secretive, what guarantee is there that someone won’t completely abuse the private information? As a result, people’s willingness to continue trading their privacy for national security begins to fall away.

But this debate has been sidelined in favour of fantastical conspiracies about crypto-fascists, vehement anger with Barack Obama, and breathless “told-you-so’s” about the evils of the US government. This is neither constructive nor very accurate. Far better would be to have a reasoned debate about how to bring transparency and accountability to the FISC process, thereby helping to reformulate the relationship between government and citizens; national security and privacy, in an arrangement beneficial to all parties.