The Snowden revelations about NSA activities have brought government access to online data into the public eye over the past year. Allegations that surveillance programs may have impacted American citizens have led to public outrage. In response, the president has promised to reform the U.S. government surveillance apparatus to “provide greater transparency to our surveillance activities and fortify the safeguards that protect the privacy of U.S. persons.”
Long before the Snowden revelations, enhancing the privacy of U.S. persons was the focus of less-visible efforts to reform the Electronic Communications Privacy Act (ECPA), a law enacted well before the Internet era that allows law enforcement access to a panoply of electronic information held by third-party information service providers without first obtaining a warrant.
In December 2013, more than 100,000 Americans signed an online petition calling on the Obama administration to support ECPA reform. Although a warm spring finally is emerging in Washington, D.C., the White House has remained silent as reform bills (e.g.,S. 607 and H.R. 1847) remain frozen in Congress.
President Obama announced this morning that he will propose legislation calling for significant changes in the NSA’s telephone metadata program. This is good news, indeed.
The enactment of these proposals would strike a much better balance between the interests of liberty and security. They would preserve the value of the NSA’s program in terms of protecting the national security, while at the same time providing much greater, and much needed, protection to individual privacy and civil liberties.
The proposals are based on recommendations made by the president’s five-member Review Group, of which I was a member. To understand why we came up with these suggestions, it is necessary first to understand how the program operates.
Under the telephone metadata program, which was created in 2006, telephone service companies like Sprint, Verizon and AT&T are required to turn over to the NSA, on an ongoing daily basis, huge quantities of telephone metadata involving the phone records of millions of Americans, none of whom are themselves suspected of anything.
Even though the program to-date has functioned properly, history teaches that there is always the risk of another J. Edgar Hoover or Richard Nixon.
Senator Rubio of Florida is now one of the strongest contenders in the GOP for president. He is qualified and likeable and thus far has a clean record on ethics. One or more of Rubio’s Senate colleagues also might have a shot at the nomination. There are other good candidates as well. And Republicans, if they can get their act together, have a very good chance of electing a president in 2016.
One of the most important things a new president will do is appoint judges, the job that our current president has been trying to do for the past five years. The president will need the advice and consent of the Senate to make these appointments, but courts need judges, and presidents and senators have an obligation to make sure vacancies on courts are filled.
And the place where senators should care most about filling judicial vacancies should be their own home states. The interests of constituents in access to judges and justice should be a priority over playing partisan politics.
And this is why, until recently, it usually was not a problem for the Senate to allow home state senators an informal veto—implemented through the so called “blue slip” process—over confirmation of judges in their own states. Senators might try to block nominees from other states with filibusters and other tactics, but would protect their own constituents by working out a deal with the White House for nomination and confirmation of an acceptable nominee in their state.
* Editor's Note: The State of Arizona debuts tonight, January 27, on the PBS series Independent Lens. Check local listings.
The fact that our documentary, The State of Arizona broadcasts the night before The State of the Union has put each of us in mind of the state of immigration reform and the challenges we’ve continuously faced in adopting it.
Why should the issue be so vexing? After all, everyone agrees the immigration system in place is broken. One of the greatest indicators that the system broke down was the state of Arizona when we first started filming.
We were drawn to Arizona by SB 1070, the state’s controversial law, nicknamed the “Show Me Your Papers” law. It was the most extreme immigration law our country had seen in generations. It had a smorgasbord of provisions, including one that, as past by the legislature, required any state entity to request documents from anyone deemed “reasonably suspicious” of being undocumented. If a county, city or town employee failed to ask for papers, they risked sanctions or a private right of action embedded in the law. The law codified racial profiling, which was why it drew international headlines.
We landed in Arizona soon after Governor Brewer signed an amended version of the bill, one that cabined SB1070 to legitimate stops by law enforcement. Still a scary proposition given the way Maricopa County Sheriff Joe Arpaio’s office was, as a federal district court judge later ruled in Melendres v. Arpaio, engaging in systematic racial profiling of Latino drivers under the color of law.