NSA Tag

The Patriot Act expanded the government's ability to keep an eye on American citizens---and their data. Through special permissions granted by the FBI through "national security letters," U.S. spy agencies are able to access user data owned by tech companies, while at the same time barring those companies from disclosing to users and shareholders what data has been requested. Fortunately, appeals judges across the country are siding with tech companies against the FBI in a series of lawsuits challenging the gag orders. Via Bloomberg Law:

“More and more service providers are issuing transparency reports,” said Kurt Opsahl, an attorney with Electronic Frontier Foundation, whose clients are seeking an end to the letters. “Many would like to say what national security” demands they’re getting. The gag provision violates free-speech rights, U.S. District Judge Susan Illston in San Francisco ruled in March 2013 in a lawsuit brought by a phone-service provider that received such a letter. She put her ruling on hold while the government appeals it. Because recipients of the letters are forbidden from discussing them openly, the identity of the phone company isn’t public.

The Justice Department's argument centers on the idea that national security concerns trump the general First Amendment rights of tech companies; they say that if companies are allowed to disclose which agency is looking at what data, terrorists will be able to gain inside information into national security investigations, and thus, that the government has a compelling interest in keeping this information classified. Tech companies' main concerns center on the indefinite nature of the gag order, which is also leaving judges questioning the heart of the Justice Department's argument:

The Director of National Intelligence indicated Monday that the federal government probably should have been more transparent in the first place about its collection of phone records. In an interview with the Daily Beast’s Eli Lake, James Clapper reflected on how the program may have been received differently had general information about it been shared with the public from the outset. From the Daily Beast, Spy Chief: We Should’ve Told You We Track Your Calls:

In an exclusive interview with The Daily Beast, Clapper said the problems facing the U.S. intelligence community over its collection of phone records could have been avoided. “I probably shouldn’t say this, but I will. Had we been transparent about this from the outset right after 9/11—which is the genesis of the 215 program—and said both to the American people and to their elected representatives, we need to cover this gap, we need to make sure this never happens to us again, so here is what we are going to set up, here is how it’s going to work, and why we have to do it, and here are the safeguards… We wouldn’t have had the problem we had,” Clapper said. “What did us in here, what worked against us was this shocking revelation,” he said, referring to the first disclosures from Snowden. If the program had been publicly introduced in the wake of the 9/11 attacks, most Americans would probably have supported it. “I don’t think it would be of any greater concern to most Americans than fingerprints. Well people kind of accept that because they know about it. But had we been transparent about it and say here’s one more thing we have to do as citizens for the common good, just like we have to go to airports two hours early and take our shoes off, all the other things we do for the common good, this is one more thing.”

It's difficult to know whether or not the American public would have accepted the program as another security necessity.  But I'd agree that a more extensive public debate about the general nature of the program probably would have been more productive at the outset.