NSA's Chief Privacy Officer Admits That Maybe The NSA Shouldn't Rely On 'Cute' Interpretations Of The Law

from the ya-think? dept

Almost exactly a year ago, the NSA announced the hiring of Rebecca Richards to be its Civil Liberties and Privacy Officer, leading many to exclaim, wait, the NSA has that job? Indeed it does. Though we haven't heard much from Richards since that hiring, she did appear on the latest "Cyberlaw Podcast" with Techdirt's number one fanboy, Stewart Baker.

During the podcast, Richards admits what many of us have been arguing for years (since even before the Snowden revelations), that the NSA is probably making a mistake in relying on "cute" interpretations of the law to claim that it has legal justifications for its actions:

"If the law on it's face does not–if you have to go through too many contorted legal [inaudible], I mean what is legal? That's where we need to, not have perhaps cute legal interpretations."

This was in response to a question from Baker, in which he claims that it was "devastating" for the NSA to get criticized when it believed everything it was doing was legal. Baker suggests that the NSA is shocked that "staying on the right side of the law didn't actually protect the agency from disaster."

Except that's the problem, isn't it? These "cute" and (more importantly) "secret" interpretations of the law aren't about actually staying legal. It's about giving the appearance of being legal and letting the NSA's leadership pretend that what they're doing is okay because someone crafted a twisted legal argument -- not because it's actually the right thing to do. In fact, as we noted the week after the Snowden revelations, the really disturbing thing wasn't even in the actions themselves, but the very idea that what the NSA was doing might actually have been legal. When you're twisting the law in such a way, that you can't even admit to the public how you're twisting the law, then how could it possibly be a surprise when people get upset to learn how you've been twisting the law?

The really amazing thing is how tone-deaf Baker, Michael Hayden, Keith Alexander and others are to this argument. They insist up and down that revealing these "secret interpretations" of the law would somehow harm US intelligence practices, yet they can't fathom why the public might possibly be upset that their secret interpretations of the law appear to counter the plain wording of the law.

This should be rather simple: if the public knows what the law says and what it means, then the public won't get surprised when it finds out that the NSA acted within the law. The only problem comes when we find out that the NSA has stretched the interpretation of the law to be completely contrary to the plain language of the law. Don't want the public to get upset? Don't twist the law -- or at least be transparent about your twisted belief in what the law says. The law should never be secret. The interpretation of the law should never be secret. Sure, the NSA can keep certain sources and methods secret -- but that is entirely separate from the question of legal authority.

And yet, Baker still insists that merely revealing the twisted interpretation of the law would somehow reveal sources and methods:

"Isn't the problem there, you say I'm not going to have cute or aggressive legal interpretations, but if you want to explain to people what your new interpretation is you kinda have to put it in a context of facts, and context of facts gives a lot away about how your program actually works."

First of all, it's difficult to see how that would be true -- unless, again, that interpretation of the law is questionable and not in line with what the law actually says. What Baker is saying here is a defense of secret law, arguing that the government should be able to make up its own interpretation of the law and then keep it secret. That is the antithesis of democracy. Yet that's what he advocates for.

And, ridiculously, Richards immediately agrees:

"I don't disagree. I think this is a work in progress."

As Conor Friedersdorf notes in posting his take on this story, the answer Richards should have given was:

Transparency about what the law actually says is a non-negotiable part of having a government by and for the people. Without at least that much transparency, representative democracy cannot function properly.

But, apparently, even the "civil liberties" person at the NSA doesn't seem to recognize that fact.

Filed Under: civil liberties, nsa, privacy, rebecca richards, secret law, stewart baker, surveillance