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Fix NSA mess -- or else

By Christopher Slobogin, Special to CNN
August 13, 2013 -- Updated 1631 GMT (0031 HKT)
National Security Agency leaker Edward Snowden poses with German Green party parliamentarian Hans-Christian Stroebele in Moscow on October 31. Stroebele returned from the meeting with a letter from Snowden to German authorities, which was distributed to the media. In it, Snowden said he is confident that with international support, the United States would abandon its efforts to "treat dissent as defection" and "criminalize political speech with felony charges." National Security Agency leaker Edward Snowden poses with German Green party parliamentarian Hans-Christian Stroebele in Moscow on October 31. Stroebele returned from the meeting with a letter from Snowden to German authorities, which was distributed to the media. In it, Snowden said he is confident that with international support, the United States would abandon its efforts to "treat dissent as defection" and "criminalize political speech with felony charges."
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NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
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STORY HIGHLIGHTS
  • President Obama announced review of surveillance after Edward Snowden revelations
  • Christopher Slobogin says Congress must act quickly to discuss reforming surveillance
  • To restore trust in government, the snooping must happen under publicly available rules, he says
  • Slobogin: Fears of government spying could badly hurt American companies, economy

Editor's note: Christopher Slobogin, who holds Vanderbilt Law School's Milton R. Underwood Chair in Law, is the author of "Privacy at Risk: The New Government Surveillance and the Fourth Amendment" (University of Chicago Press, 2007).

(CNN) -- Edward Snowden's revelations about the National Security Agency's surveillance program provide the perfect opportunity for Congress to put aside its grandstanding and bickering and engage in the kind of deliberation we expect from the national legislature of the world's most powerful democracy.

All of a sudden, now that the NSA's normally cloaked operations are laid out in lurid detail on the front page of every newspaper in the country, politicians of all stripes, including President Barack Obama, are clamoring to place tighter strictures on it.

They should do so, and they should do so immediately, dramatically and very publicly. Because the real danger of these covert surveillance programs is that once they are no longer completely covert, their existence undermines everyone's trust in the government.

Christopher Slobogin
Christopher Slobogin

Ironically, without a swift and strong signal that the government is not intent on "willy-nilly sucking information from everybody" (to use Obama's colorful language), Snowden's disclosures will hurt the country far more than if he'd stayed in his NSA cubicle and left most of us blissfully unaware of what he and his colleagues were doing.

Now that the cat is out of the bag, the potential harm of unlimited government surveillance is more palpable to more people. Pre-Snowden, people could blithely assume they wouldn't be the target of government surveillance, "I've done nothing wrong; why should I care?" and continue texting and phoning without a second thought.

Today, however, everyone knows that the government is, in fact, in the business of tracking their overseas communications, and everyone is more willing to believe, whether true or not, that the government is also tracking their domestic calls and perhaps even listening in, all without a warrant.

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That sense of unease can and does have a chilling effect on everyday interactions, an unease that will continue to spread once people begin to realize that, as a result of the 70-plus "fusion centers" dotting the country, the government has the capacity to fuse together information from dozens of other sources as well.

As you use your phone or your computer, in the back of your mind is now planted the thought that hundreds of government analysts can find out what you're doing as well as the no longer rhetorical query: Who knows what they'll do with my information?

Even more concrete harm is coming down the pike. Small Internet companies have shut down their e-mail services because they can't guarantee privacy from the government, big ones are demanding more transparency from the government so they can reassure their customers, and corporations, both overseas and in this country, may route their Internet communications elsewhere so that they no longer rely on servers in the United States.

Perhaps most damaging to the American economy, because of Snowden's disclosures, foreign countries are considering transferring their computer-related business from American companies to local ones.

Maybe at this point nothing the American government does can staunch the bleeding. But it is worth trying, because the cost of such an effort in monetary terms will not be significant, and because further regulation does not have to undermine national security.

A good start has been made. Obama has indicated a willingness to be more transparent about the government's surveillance programs and hinted that the Foreign Intelligence Surveillance Court, which oversees much of the surveillance aimed at international terrorism, will now feature an attorney arguing against the issuance of blanket surveillance warrants.

But much more is required. First, Congress needs to have a robust debate about specific types of surveillance that we are willing to authorize in our efforts to protect the country. During this debate, legislators need to keep a simple rule in mind: Whatever intrusions into privacy are contemplated must affect members of Congress in the same way they will affect others as a guarantee that the costs as well as the benefits of mass surveillance will be fully considered.

Ex-NSA chief: Safeguards exist to protect privacy

Any legislation that is passed must specify the conditions under which such surveillance will occur, rather than simply delegate to the NSA, the FBI and other government agencies the discretion to decide when and where to intercept communications, and it must also require, similar to provisions in other surveillance statutes, that periodic reports about agency activities be made available to the public.

Additionally, the relevant agencies should be required to devise rules implementing the legislature's directives, subject to the notice and public comment procedure that all agencies must follow.

Of course, the argument against this type of transparency and debate is that it will endanger national security. But given the fact that the American public only needs to know the broad outline of the types of information to be monitored and analyzed, this fear is vastly overstated. In contrast, the fear that, without such a public discussion our vestigial trust in government will be fatally undermined, is probably not.

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The opinions expressed in this commentary are solely those of Christopher Slobogin.

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