The gulf widens between NSA supporters and opponents

[Commentary] At this point we are likely months away from any definitive actions to change the National Security Agency’s modus operandi. It must be remembered that, though some reforms could be put in place by executive order, major revisions would need congressional approval – and Congress, like the rest of the country, remains uncertain and divided over the correct balance between national security imperatives and bedrock privacy rights.

Still, here are my hunches about potential outcomes:

• NSA metadata mining programs will not, in the end, be eliminated, though the agency may have to live with some restrictions. The key battle will be over the nature of any restrictions on data gathering. Due to opposition from both the NSA and phone companies, metadata traffic will not be parked in the private sector. While possible, creation of an independent body to store such data presents complicated issues of organization and authority.
• More likely, some form of an adversarial system will be constructed within the legal framework that includes the NSA and the federal security courts. Again, the powers of such a “public advocate” will pose the strongest challenges.
• The NSA will not be ordered to cease attempting to crack encryption codes of both American and foreign firms; and it won’t stop placing malware where it deems necessary for security reasons along the global internet supply chain.
• The White House will take greater control of decisions to spy on individual world leaders, though the practice will not stop entirely.
• Congress will not go along with extending privacy rights under the 1974 Privacy Act to foreigners.
• I have no idea how the appellate courts and the Supremes will deal with Judge Leon’s decision -- though I suspect that, despite admonitions from some of my colleagues here at AEI that the balance between national security and privacy should be determined by the Congress and the Executive, judicial actions may well intervene.