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IU Maurer professor offers recommendations for reforming the NSA

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To prevent the National Security Agency’s continued illegal surveillance and collection of metadata on foreign and domestic individuals, legal scholar Fred Cate is recommending more transparency and increased monitoring.
 
Cate is a professor at the Indiana University Maurer School of Law and the director of the Indiana University Center for Applied Cybersecurity Research. He submitted a list of 10 recommendations to the President’s Review Group on Intelligence and Communications Technology in September.

“To be certain, many of the NSA’s activities must, in large part, be conducted in secret,” Cate wrote. “But this does not mean that those activities should be conducted free from effective oversight or that they should be immune from careful scrutiny as to whether their considerable costs are justified by appropriate benefits. Perhaps most importantly, they should not operate outside the law or be conducted in ways that are unnecessarily intrusive or costly or damaging – to personal privacy, to the U.S. economy, to the integrity and standing of the nation, or to the values that we purport to uphold.”

Among his recommendations, Cate is advocating for the establishment of an oversight agency, strengthening of the Foreign Intelligence Surveillance Court, and reducing secrecy by disclosing key information to the public.

Cate compared the oversight agency to an intelligence version of the Federal Reserve Board or the Government Accountability Office. It would help the NSA think more broadly about its activities and provide credible and apolitical monitoring of the NSA as well as advise the legislative and executive branches on compliance issues and areas of concern.

He also suggested that the oversight agency could provide security-cleared attorneys to appear before the Foreign Intelligence Surveillance Court to prevent the court from rubber-stamping NSA requests.

While acknowledging that some surveillance activities should be kept private, Cate recommended the NSA disclose the broad outlines of its activities to the public. Moreover, Congress should prohibit outright secret data systems, secret legal interpretations and secret assertions of government power.

 “In no event, ever, must (the) need for secrecy be allowed to justify the absence of oversight or accountability, especially concerning activities such as surveillance of U.S. persons that threaten fundamental rights and risk altering the basic balance between the government and the governed,” Cate wrote. “Whatever we think of the good intentions of the current leadership of the NSA, this is the surest way to the abuse of power and, ultimately, to tyranny.”
 
 

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  1. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

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