The New March Madness: Congress, the Executive Agencies, and the Uncertain Future of American Surveillance

By Chris Pawlik – March 2014 was a whirlwind of a month for those within the United States intelligence community. Vice Admiral Michael S. Rogers, President Barack Obama’s nominee, to replace General Keith as the 17th Director of the National Security Agency (NSA), testified for the first time before the Senate armed services committee. Later that same day, Senator Diane Feinstein (Democrat – CA) found herself along with the Senate Intelligence Committee embroiled in an inflammatory dispute with the CIA over the agency’s search of Intelligence Committee computers.

Rogers, who was also nominated to simultaneously lead the United States Cyber Command, a position that does require Senate confirmation, does not need Senate confirmation to become the Director of the NSA. Rogers’ testimony discussed the United States’ handling of its collection of telephone data as well as the growing cyberthreat against the United States. Rogers has seen little opposition among members of Congress and has expressed views regarding the use and retention of metadata as supportive of the current status quo.

Rogers’ testimony seemed to pass through the halls of Congress like a cool breeze, compared to the eruption of outrage that would  occur later that day. Senator Feinstein, Chairman of the Senate Intelligence Committee, publicly accused the CIA of violating the United States Constitution and breaking the law. Senator Feinstein’s accusations against the CIA surround the Senate Intelligence Committee’s multi-year investigation of the CIA’s interrogation program and practices. Senator Feinstein has been an ardent, vocal supporter of the NSA and the agency’s operations since the Snowden leaks first appeared in June 2013.  CIA Director John Brennan responded within hours of Senator Feinstein’s remarks to refute her accusations against the agency. The conflict between the CIA and the Senate Intelligence Committee remains on going and has managed to expose Senator Feinstein’s credibility to a contradictory, and inevitably untenable position regarding surveillance conducted by executive agencies.

As that conflict dissipated from national headlines, Barack Obama announced that he will ask Congress to discontinue the NSA’s bulk collection and storage of phone records while still allowing the government, under more limited and monitored circumstances, to access the metadata when needed. However, the month of March was not content with seeing only those within the intelligence community making headlines.  The day after Rogers testified before the Senate armed services committee, Google announced that it would begin routinely encrypting all internet searches within China. But this wasn’t the only bombshell Google dropped on the world in March. Google went ever further and announced that as of March 20, 2014, all email sent through its Gmail web service will be secured by an encrypted HTTPS connection. In effect, Google’s implementation of pervasive encryption across its web services makes it substantially more difficult for the NSA to decipher communications being sent to and from these services. Google has been particularly frustrated with the United States government since leaks regarding the NSA’s MUSCULAR project first surfaced in the Washington Post.

As the actions of Google in March clearly demonstrate, corporations with the capability to act against sophisticated government intrusions will not sit idly by while policymakers squabble with the agencies they oversee. From all the madness that surfaced in March, one thing is certainly coming in the months ahead and that is change. What these changes are and what impact these changes will have on the American legal system are far from clear. The world is watching United States policy with a keen eye. Whether substantive legal changes as to surveillance can be made that will satisfy a diverse group of interests remains to be seen.


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