July 2013

The Justice Department acknowledged for the first time in a terrorism prosecution that it needs to tell defendants when sweeping government surveillance is used to build a criminal case against them.

The about-face, contained in a July 30 court filing, marks another way in which the Obama administration is adjusting to revelations by former National Security Agency contractor Edward Snowden about phone and Internet surveillance by the NSA. The revelations forced the government to acknowledge publicly aspects of its widespread collection of Internet and phone records, giving critics of such surveillance more legal ammunition to challenge the programs. The filing suggests a new potential avenue for legal challenges to the surveillance programs.

[Commentary] The National Security Agency (NSA) program based on section 215 of the USA Patriot Act, which collects phone numbers and related data, is often called a “surveillance program” or a program to “listen to phone calls.” It is neither.

Rather, this program collects only phone numbers and the duration and times that calls are made. When the NSA learns of a number used by a terrorist connected to al-Qaeda, it can search its database of phone records. Only 22 highly vetted NSA analysts can approve a query of this database — and only when they have a reasonable, articulable suspicion that the number is connected to terrorism. I intend to work with members of the Senate intelligence and judiciary committees to consider changes to the NSA call-records program in an effort to increase transparency and improve privacy protections.

These changes would require that:

• the number of Americans’ phone numbers submitted as queries of the NSA database be made public annually, as well as the number of referrals made to the FBI each year based on those queries;
• the number of warrants obtained by the FBI — based on probable cause — to collect the content of any call be released annually;
• the number of times in a year that any company is required to provide data pursuant to FISA’s business records provision be released;
• all classified FISA court opinions and reports on U.S. persons targeted for surveillance under FISA be made available in a secure location to every member of Congress ;
• the five-year retention period of phone records be reduced to two or three years;
• the ideological diversity of the FISA court be increased (86 percent of judges appointed to the court by Chief Justice John G. Roberts Jr. have been Republicans and the vast majority were prosecutors, according to media reports); and
• the FISA court review each query of the database as soon as practicable to determine its propriety under the law.

[Sen Feinstein is chairman of the Senate intelligence committee]

Google is no stranger to high-profile mistakes in the handling of user data, particularly in recent years. Such episodes have forever reshaped its internal data-handling practices, said people familiar with the changes.

Following a number of debacles, which caused Google to pay a fine to the federal government and agree to outside privacy audits, the company overhauled its process for reviewing soon-to-be-released products to include privacy as a chief concern. The slip-ups have focused the company on trying to prevent the next "PR nightmare," according to one employee. Among other things, Google now makes pre-emptive changes to head off government scrutiny.

The string of broadcast television station ownership deals capped by the announcement of a sale by Allbritton Communications puts pressure on the Federal Communications Commission to keep its eye on the broadcast industry even as the agency is going through its own makeover. Taken together, the deals signal a reshaping of the broadcast business as it consolidates into larger station ownership groups that provide more leverage as they buy programming and sell it to pay-TV operators.

As the industry shifts, the FCC has been slow to act with its media ownership rules in flux. The commission’s rules dictate who can own what media properties and where. They generally prevent one company from owning a newspaper and a TV station in the same market and effectively cap what media properties one company can hold in individual locations. Mark Fratrik, BIA/Kelsey chief economist and vice president, said the rash of sales comes down to three things: historically low interest rates, higher-than-expected TV station revenues and rising fees from pay-TV operators. While TV deals have been moving fast, little has unfolded at the FCC with media ownership rules.