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Privacy Protection: Is Major Reform on US Spy Programmes Impending?

Why the retirement of Congressman Mike Rogers marks such an important turning point in America’s intelligence agencies.

"You can't have..

“You can’t have your privacy violated if you don’t know your privacy is violated.” Mike Rogers  retires.

Republican Congressman Mike Rogers of Michigan’s 8th district recently announced his decision to step down at the next election. Normally, a long-time Representative deciding to call it quits and move on with his career is no big deal, certainly nothing worthy of broader analysis beyond who might win his seat. The fact this career move is so he can become yet another right-wing radio host – a breed Rogers somewhat inexplicably thinks is in short supply in America -is not surprising. The man has had more Sunday talk show appearances than even infamous camera hogs like Senators John McCain and Chuck Schumer. But Rogers’s resignation, Chair of the Intelligence Committee, heralds bigger changes, both for power politics and for America’s intelligence policies – primarly, the NSA will lose its biggest ally.

Mike Rogers’s imminent departure, is a loss for Michigan with the state losing several of its most powerful Representatives due to retirements in the next election. But it is more than simply another nail in Michigan’s political coffin. Optimistically, it’s also a potential sign that reforms may be inevitable for the NSA and the US intelligence structure, still rocked by the relevations of the Snowden leaks. Already, some steps have been taken. The Obama administration has announced it will cease the collection of telephone data in bulk and instead only be able to retrieve such data from the phone companies with a judge’s permission. Other announced plans are court approvals for orders requiring businesses to turn over customer communications; a public privacy advocate to argue against the security services when court orders are being requested; and privacy acts being extended to non-US citizens. These reforms fall far short even of the modest and pragmatic proposals of Obama’s own independent commission into the plans, but are a worthwhile first step.

Rogers, however, has been a steadfast defender of the intelligence services in these times of great public scrutiny. He’s been a particularly powerful legislative ally in his capacity of Chair of the House Intelligence Committee, with his Democratic counterpart, Dutch Ruppersberger of Maryland, also being a key defender of programs such as bulk data collection. Despite most independent analyses suggesting that the surveillance tools at the centre of the scandal have directly revealed no terrorist attacks and only corroborated potential warnings, Rogers and Ruppersberger have argued that even steps as modest as requiring additional certification by the courts before permitting surveillance activities as having an “immediate – and potentially fatal – operational impact.”

A Worrying Attitude

Most famously, Rogers argued that “You can’t have your privacy violated if you don’t know your privacy is violated,” which was either an uncharacteristic mangling of words or a betrayal of a very lax and undemocratic attitude to secret legislation. The logical implications of this are worrying – can you not be burgled unless you notice something’s been stolen? Can you not be stalked if you do not notice the stalker? The insight this gave into his governing philosophy was even more disturbing. The interpretations of laws such as the PATRIOT Act that allowed such intrusions into the private lives of Americans and non-Americans alike were made in secret, those in the know unable to openly discuss them until Snowden blew the whistle.

Secret laws are something that have been long considered taboos in even the most shaky democratic nations, their potential for abuse, corruption, and incompetence due to lack of high transparency. An attitude like Rogers’s to the existence of secret laws in America for over a decade is worrying as these measures have had an array of unintended consequences. They have damaged the soft power and credibility of the US and its closest intelligence-sharing allies such as the UK, had little impact on the actual prevention of terrorism, and billions of dollars being spent that could be spent on more traditional and effective techniques. These could all have been avoided with more oversight, oversight Rogers has sought to prevent.

Rogers and Ruppersberger have also long advocated the Cyber Intelligence Sharing and Protection Act. While the backlash was less extreme and less successful than the backlash against SOPA, the bill that went too far in protecting intellectual property at the great expense of most of the world’s internet users, CISPA was still a great threat for users of the internet. While it contained good measures such as establishing a framework for companies and government agencies to address cyber-security issues, the bill overrides most existing privacy measures, carries overly broad definitions of cyber-security (corporate lawyers could argue too many large downloads might be included), has too few restrictions on when companies can pass on data. While far from as grand a threat as SOPA or existing NSA laws are to privacy and internet freedom, CISPA is a badly-written bill that represents an attempt to broaden the surveillance net just when the public are becoming aware that it’s gone too far.

A New Dawn for Intelligence Reform

Some recent news does suggest that Rogers and Ruppersberger have softened on their opposition to NSA reforms. Joined by the Intelligence Committee members and members of both parties famously less critical of organisations such as the NSA and the CIA, they introduced the FISA Transparency and Modernization Act of 2014 in the latter part of March. The bill ends bulk government collection of phone records, as well as of “firearm sales records, library records, medical records, tax returns, educational records, and other sensitive personal records.” It seems like they are now recognising the need to fix the NSA.

But this is just a recognition of the political tide turning. The bill contains measures that, due to a mixture of public pressure and executive action, are already likely to happen, or will be implemented by Obama unilaterally. In a break from tradition, debate over the bill has been given to their Intelligence Committee, allowing hearings and amendments to be made on their terms. Normally, intelligence reform bills fall within the jurisdiction of the Judiciary Committee, far less appreciative of NSA overreach, but Rogers has seemingly used his close ties with Republican leadership to avert that. This shows they don’t want a proper debate, they just want to get the issue over and done with. By appearing to compromise here and beat them to the punch, Rogers and Ruppersberger are clearly hoping to get their bill passed, as opposed to a more ambitious alternative.

That more ambitious alternative exists – The USA FREEDOM Act. That bill has further limitations, such as court approval before requiring phone companies to turn over data, and a minimum degree of relevance before such data can be approved for surveillance. This bill has received support from powerful figures, such as Patrick Leahy, Democratic chair of the Senate Judiciary Committee. It was authored and proposed in the House by Jim Sensenbrenner, Republican of Wisconsin.

Sensenbrenner’s support is particularly interesting. He is most famous for being a hard-liner on crime and terrorism issues, and his most famous legislative accomplishment to date is none other than the USA PATRIOT Act, the bill that spawned the secret government programs so shocking to us today. Bar a name involving clever alliteration, this new bill is completely different to Sensenbrenner’s previous work. Another PATRIOT Act supporter who has toned down their support is Senator Dianne Feinstein, Democrat of California and Rogers’s counterpart on the Senate Intelligence Committee, who is now furious at revelations of the CIA spying on Congress. Her concerns over enhanced interrogation and rendition programs, some of the more shocking parts of the intelligence community’s toolbox, were then dismissed by a former CIA boss as clouded by an “emotional” reaction. Many now expect this anger and disgust to translate into more of an appetite for reform.

Gathering Momentum

Congressional victories for the movement to curtail intelligence overreach only sets to be gathering momentum. Opposition and support comes from both parties, meaning partisan gridlock will not be an obstacle as it is with most issues. A move to defund the NSA’s bulk collection program, sponsored by Republican Justin Amash and Democrat John Conyers (opposites on politics, background, race, and age), failed with 205 votes to 217 votes last year. The fact the measure received a vote at all, when both parties’ leaderships opposed it, and came so close to passing when its supporters were expecting only around 150 votes, is a symbolic victory in and of itself. Now, with many members having continued to change their minds and NSA advocates such as Rogers retiring, measures such as the Amash-Conyers proposal or the USA FREEDOM Act look more likely to pass.

Rogers’s resignation is a win for civil liberties and privacy advocates in both America and the world, and it may allow new changes to US intelligence policy. As one of Mike Rogers’s constituents said, “Mike Rogers spent a career serving his country, and I respect him. But his views on the Iraq War, on government surveillance, and on a host of other national security topics leave me thinking that while it’s sad Michigan will lose influence in Congress, the nation will probably be better off for it.”

He may be right. The only guaranteed winner, however, is Alabama Republican Congressman Mike Rogers, who will no longer have to explain that he isn’t THAT Mike Rogers.

“You can’t have your privacy violated if you don’t know your privacy is violated,

About Gianni Sarra

Gianni Sarra is the American Affairs contributor to The International Citizen, focusing on US politics and policy. He studies Politics of the International Economy at King's College London.
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