We have reached a point where nearly everyone can agree that the NSA has overreached on some margin. Where you draw the line depends upon you point of view—whether it was the broad surveillance overseen only by a secret court that did it, or lying to that court and the public repeatedly, or intentionally crippling the security protecting the enormous amount of economic activity conducted over the Internet—a very broad set of perspectives is likely to find something wrong here. What can we do to roll back this aggressive expansion of the surveillance state, and to lower the probability of it happening again in the near future? The best answer is the simplest one: abolish the NSA. Abolish it, and create an easy mechanism for abolishing agencies like it in the future.
Institutions matter. Bruce Schneier recently pointed out that we never managed to reign in J. Edgar Hoover’s FBI—Hoover simply died. In his case, it turned out that all the practical knowledge and clout came from the man himself, rather than the institution. In the case of the modern NSA, the institution itself is what lends its leaders power, and not the other way around—their death or retirement are unlikely to bring us any better outcomes. The NSA has been doing this sort of thing for most of its sixty year history.
Public institutions, no less than the institutions of the marketplace and civil society, are emergent phenomena. The NSA is ostensibly under the umbrella of the Department of Defense, but it has long since grown into a fairly independent entity. Its leaders from the beginning have faced constraints in the form of budgets, chains of authority, Congress, and the courts. But just as entrepreneurs are capable of growing a business from an operation run out of a basement to an international conglomerate, so too are agency leaders capable of working the system to build up the power, clout, and practical knowledge of their organization.
In short, every time we create a new public organization which its own budget and leadership with a certain set of discretion, we are playing the
lottery. With the NSA, the citizens of America—and indeed of much of the world—have decidedly lost that lottery, and it’s time we took action to dispense with that practical knowledge and power.
Even if you believe in the importance of the NSA’s mission, there is no reason why a specialized agency is needed to pursue it. We have too many intelligence agencies as it is—just increase the signal intelligence responsibilities of the other ones. But if you insist on having a specialized agency, we would still be better off abolishing the NSA and starting from scratch, with an entirely new leadership, than with simply reforming the existing institution. Institutions have weight, they have inertia; as in most human affairs, preferential attachment is at work. This means that the last infraction makes the next one more probable.
But by that same logic, if we abolish the NSA today, it makes it more likely that we will abolish the next agency to cross the line in this manner. Moreover, we do not have to abolish them willy-nilly; it can be done in a way that makes the next abolition yet more likely. Ideally, we could pass a law that called for congress to abolish any institution deemed to have either outlived its purpose or to have crossed a legal or ethical boundary, and make it so that a simple majority is sufficient to move forward with the abolition.
Most of the dialogue I have seen surrounding the recent set of revelations seems to have focused on the shock of the audacity of what the NSA has done. Where change is discussed, it tends to be focused on mild reforms, perhaps going so far as to call for overturning the Patriot Act. But this is not nearly enough. We need to think in terms of institutions and in terms of what changes are going to have a meaningful impact on the probabilities of a range of bad scenarios moving forward. After getting away with overreach to the extent that it has, dealing with mild reform in the face of having their activities completely exposed is just as likely to embolden the NSA as anything else. Get rid of them entirely—do away with the decades of accumulated institutional know-how that they’ve refined into a weapon to use against us.