Companies that secretly helped the government's secret anti-terrorism surveillance operations without requiring valid legal orders have found their reputations sullied, their billboards re-decorated and their lawyers busy fending off suits seeking billions in damages. Just ask AT&T.
But given that the government's spooks will continue to rely on private companies -- especially telecoms -- to help with their secret intelligence efforts, could these companies actually serve as a watchdog protecting the country from intrusive, lawbreaking spying?
Jon Michaels, an acting professor at UCLA Law School, thinks they could.
The key, according to Michaels' article in the California Law Review, is making such companies tell the appropriate Congressional committees and inspectors general in regular reports when they transfer information about Americans to the government's spy agencies. Congress also much find a clear way to punish companies which cooperate informally and immunize those who follow legal orders.
That should make telecoms resist the kind of handshake agreements like the ones that led the nation's largest telecoms to give the government billions of phone call records and to let the nation's spooks wiretap the internet inside the United States, Michaels argues.
And the spies' reliance on private companies and organizations (Western Union, the phone companies, JetBlue and FedEx, among others) won't be ending any time soon.
In July, Congress buckled to pressure from the White House gave the nation's spies wide-ranging new powers to wiretap
American-based communication facilities and service providers. It also granted retroactive immunity to companies that helped the government spy -- without court orders -- on Americans' communications post 9/11.
But with the mandatory reports, Congress will have a better idea what the nation's spies are up to, at least in terms of domestic operations, Michaels argues in All the President's Spies: Private-Public Intelligence Partnerships in the War on Terror.
"Armed with data far more detailed and more timely than what it currently receives, Congress could decide to hold hearings [...] to investigate programs it suspects are misguided, insufficiently attentive to privacy concerns, [and] overly burdensome to corporations," Michaels writes.
The nation's inspectors general would keep better track of the government's use of powers such as National Security Letters. The FBI's abuse of those self-issued subpoenas was uncovered by an Justice
Department inspector general report mandated by Congress.
But, Michaels argues, things would have been different if the telephone companies had been regularly reporting to Congress that the
FBI was using fake emergency letters and asking not just for one person's records, but the phone records of everyone in that person's social network.
"The inspectors general would now have the opportunity to review overall patterns of intelligence operations almost in real time, with an eye toward detecting evidence of overreaching or abuse," Michaels writes.
The nation's secret spying court would also get a bump in responsibilities and would be given the job of approving a wide range of surveillance programs every three months, as well as handling cases brought by citizens against corporations for illegal spying.
As for the Executive branch, Michaels hopes the regime makes it more likely that it turns to Congress to ask for more spying powers when it thinks it needs them, instead of just secretly violating the law.
Michaels realizes this might not be the perfect arrangement, but argues it might just work practically.
"Of course, having private actors serve as government watchdogs in the face of Executive non-compliance is not the most normatively attractive model of the separation of powers, and ti may even be seen as excusing ... bad behavior by the Executive," Michaels writes. [H]owever true reform of the sort that is necessary in terms of better allocating war-,alomg and intelligence powers is not likely to occur untill after the terrorism crisis abates...
Via National Security Advisors blog
Photo courtesy Billboard Liberation Front/Flickr
