NSA, stop spying on Americans
By Eric Heyl
Published: Saturday, Sept. 14, 2013, 9:00 p.m.
Amie Stepanovich is the director of the Washington, D.C.-based Electronic Privacy Information Center's Domestic Surveillance Project. She spoke to the Trib regarding the efforts of her organization to combat the National Security Agency's domestic surveillance practices.
Q: Two months ago, your organization petitioned the NSA to suspend its domestic surveillance program. What's happened since then?
A: The Administrative Procedure Act is a federal law that allows anybody in the United States to petition a government agency to conduct a rulemaking, which means to implement certain policies or practices in regard to one of their program areas. This isn't saying what policies should be implemented, just that procedures are needed to guide a program area moving forward.
Under that act, EPIC petitioned the NSA to conduct a rulemaking in regard to their program that purports to conduct purely domestic surveillance of individuals. The NSA, of course, is supposed to be a foreign surveillance agency and not conduct surveillance of individuals within the United States. So within the last two weeks, the NSA responded to that petition.
Q: What was the crux of the response?
A: Basically, the NSA said they don't believe they are subject to the requirements of the Administrative Procedure Act.
Q: So they feel they are above the law, in other words?
A: That's basically what they have said, that there are exceptions and circumstances when agencies may not have to comply with the provisions of this law and that they believe they fit into one of those scenarios.
The NSA's response gives EPIC a certain legal standing to challenge that response. It allows us to file a lawsuit in a federal court arguing that their response was erroneous.
This was the same tactic we used when we went against the Transportation Security Administration for their failure to implement privacy protections in regard to body scanners in airports, as we had asked them under the APA to conduct a rulemaking on privacy protection. They denied our petition twice and we were able to file a lawsuit in federal Circuit Court, and the court actually compelled the agency to conduct a rulemaking on their body scanner program.
Q: How optimistic are you that EPIC can prevail?
A: (In addition to the NSA petition), we've also simultaneously challenged the legality of this program in the U.S. Supreme Court. So we think this is a great opportunity for independent oversight in the open federal court system, as opposed to the very secret FISA court, to allow some transparency and accountability by the NSA.
Q: What exactly would EPIC like in terms of stemming these NSA activities?
A: We definitely believe that the NSA's program of collecting domestic surveillance information is unlawful and needs to be stopped. The NSA needs to start acting in accordance with the law, with the National Security Agency Act, the Foreign Intelligence Surveillance Act (and) the USA Patriot Act.
There are specific terms that already are very broadly written to allow the NSA to conduct a range of surveillance programs, and we would argue that some of that language at this juncture needs to be reined in as well. But if the NSA is actually not only acting in accordance with this broad authority, but then acting outside of even that, there is definitely a problem that needs to be addressed.
Eric Heyl is a staff writer for Trib Total Media (412-320-7857 or firstname.lastname@example.org).
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