What policies should be in place to 'fine tune' U.S. surveillance practices?

Recommendations by an advisory panel to review U.S. spying practices were released last week. The report, commissioned by President Obama, raised questions about the NSA's phone metadata collection program and surveillance on foreign leaders. Jeffrey Brown talks with two members of the panel: Geoffrey Stone and Peter Swire.


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GWEN IFILL: The Obama administration has released freshly declassified information on why the intelligence community began collecting phone and Internet records of American citizens after the 9/11 attacks.The release came after a panel of security and privacy experts raised new questions last week about the National Security Agency's activities.

Jeffrey Brown has more.

JEFFREY BROWN: The review was commissioned by President Obama after revelations by former NSA contractor Edward Snowden.

And with me now are two of the five members of the panel: Geoffrey Stone, professor of law at the University of Chicago.He's written extensively about constitutional law and civil liberties.And Peter Swire, professor at the Scheller College of Business at Georgia Tech, he served as chief counselor for privacy during the Clinton administration.

Well, Geoffrey Stone, let me start with you.

You're not calling to end the program, but you are saying that, as a general rule, the U.S. should stop collecting and storing mass metadata.So how are we to understand that?How strong a critique is this?

GEOFFREY STONE, University of Chicago:Well, basically, the critique says that there is potential value in collecting this type of information, but there are also serious potential dangers.

And, therefore, the idea is to find a way to balance these two interests in a way that maximizes the net benefit.And so our conclusion is not that there should be no inquiry into the metadata, but that, rather, the data should be held by private parties, rather than by the government, to reduce the possibilities of abuse by government, and also to provide another set of eyes on the process, which is useful.

And, also, we recommend that the government not be able to access the information without obtaining a judicial order, something that is not now required.So the idea is more than fine-tuning, but it recognizes that the program can have value, but that ideally we should find that value in a way that minimizes the potential risks to the nation and to our fundamental liberties.

JEFFREY BROWN: Well, to push that just a little further, Peter Swire, in the report, you cite how at various times in U.S. history, the government has abused information that it collects on citizens.Do you think what's happening now amounts to an abuse?

PETER SWIRE, Scheller College of Business, Georgia Tech University:Well, thank you.And glad to be here.

In the 1970s, we really saw abuse.There was a book that came out during the Watergate period that was called "The Crimes of the Intelligence Agencies."And it had chapters about a lot of different agencies.I think, fortunately, as we did our review, we dug in and did our interviews and talked to people, we have not seen evidence of political targeting of people with the United States' tools.

So that kind of abuse of the political process that we have seen in the past, we didn't find this time.And I think that's really comforting to the American people, that we have looked and we have dug under the covers and that's not what is happening.

JEFFREY BROWN: Let me stay with you for a minute about something that Geoffrey Stone just brought up.One of the key recommendations is to have the government not hold on to the data, but to give it to -- to have the phone companies or a third party -- a third-party business, I guess, hold on to it.

Why should Americans feel any more secure going that route?

PETER SWIRE: Well, I think the first thing is that I think it was a surprise to a lot of people to have basically all domestic phone calls in a database held for foreign intelligence reasons.

And as a society, we're trying to work through, how do we stay safe, how do we do our foreign intelligence, our national security and live our domestic lives where the Fourth Amendment applies and we have our liberties?

So one thing that Geoffrey Stone said is -- and I agree with -- is we have a traditional way we have done it, wiretaps, which is you go to the holder of the records and they hold them in the regular course of business.And then if it turns out that the government is doing things that are surprising, that go outside what the law is, somebody outside the government sees it.And so having the traditional holders of records do this is what we said really is probably the way to go.

JEFFREY BROWN: Now, Geoffrey Stone, the report says that there was no evidence that the metadata collection has ever helped prevent a terror attack.Now, we have heard -- we have heard otherwise, really, from many American officials.But were you surprised by what you found, or, rather, what you didn't find?

GEOFFREY STONE: Frankly, I was a bit surprised.

My expectation was that we would see proof of the sort that we did see with respect to other surveillance authorities of specific instances in which you could demonstrate that because of this particular intelligence method, specific terrorist attacks were thwarted.

With respect to the 215 metadata program, one couldn't actually see that.But that is not to say that it is not in general useful and that it doesn't feed into other sorts of information which could be helpful.But there was nothing definitive of the sort that we have see with many other authorities that we examined.

JEFFREY BROWN: But that's not -- so you wouldn't accept the -- you accept the need for the program in spite of the potential for abuses, and in spite of not really seeing any evidence that it's done much?

GEOFFREY STONE: We think the program has a certain powerful logic to it.

The idea basically is if you know or have reasonable grounds to believe that some foreign terrorist outside the United States might be contacting someone inside the United States, you would like to know that.And this program is designed to enable that.So it's a program that does have a good deal of common sense to it.And we think as a tool, it's not an inappropriate one, but it has got to be fine-tuned, and fine-tuned in important ways, so as to assure that it gives the benefit that it can provide, but without some of the costs that we think are -- right now, we think that are inappropriate.

JEFFREY BROWN: Well, so, Peter Swire, coming back to the question of oversight, did you find that the FISA court up to now has been largely a rubber stamp in approving most of what it's been asked to do?And if that is the case, how do you strengthen it because some of your report requires even more on the FISA court?

PETER SWIRE: Right.

Well, the focus of our effort was on what policy should happen going forward.We were not doing an exhaustive history.I think that by talking to people, we talked to one of the FISA judges with the Department of Justice, with NSA.In my own research, I have written on FISA for quite a long time.

Rubber stamp doesn't capture it.I think that the judges have clearly chastised the NSA in the past before they had as good a compliance program as they have now.And so -- but at the same time I think there's something in the FISA court we thought would be useful.One is more transparency, not having a secret court opinions as much, if we can avoid it.

And the other thing we say is to have a public interest advocate.Having somebody whose job is to really push and really say, here's the questions and here is the worry, that is our adversary system.And we suggest ways to build that into the system so that there is a stronger presentation of the privacy and civil liberties approach.

JEFFREY BROWN: Geoffrey Stone, there is just so much in this report, but I do want to ask you about the spying on non-Americans, because that is a big part of what you wrote about.

You're also suggesting that the U.S. government has gone too far in that regard.But my reading is that you're less specific about exactly, precisely what you're calling for there.What do you think is the best approach?

GEOFFREY STONE: Well, the basic framework of this is that there is a certain set of requirements that the United States has to abide by when it wants to, let's say, wiretap an American phone call.It needs probable cause and a warrant from a judge.

In the international realm, when we're dealing with non-United States persons who are outside the United States, under existing law, we allow the NSA, for example, to intercept those phone calls if it has reasonable grounds to believe that the phone call was carrying information relevant to international terrorism, or cyber-warfare or nuclear proliferation.So it's not probable cause.It's reasonable grounds to believe, which is somewhat different.

And there's not a judicial warrant requirement.There is after-the-fact review.Basically, what we recommend in addition to that is that there be certain specific requirements, that the government never use this program except for the purposes of national security, that it never use this program on the basis of the political beliefs or religious convictions of any person, that the United States not disseminate any information obtained through these processes, even with respect to non-United States persons, unless the information is directly relevant to legitimate foreign intelligence purposes.

We also extend the Privacy Act to non-U.S. persons.And we suggest that there should be a high level review of any kind of foreign intelligence activities with respect to the leaders of foreign nations.So we make some significant recommendations that don't bring the same standards to non-U.S. persons who are outside the United States that we use for U.S. persons.

But we basically say we think these are important human rights protections.

JEFFREY BROWN: All right.

GEOFFREY STONE: And we encourage all nations to join us in enforcing them.

JEFFREY BROWN: OK, a lot to this.But we will leave it there for now and keep watching.

Geoffrey Stone, Peter Swire, thank you both very much.

PETER SWIRE: Thank you.

GEOFFREY STONE: Thank you.