Marc Ambinder has a good post looking at some concrete ways in which the NSA and FISA courts can be reformed for more transparency and better privacy protection: Close the NSA’s Reagan-Era Collection Loophole.

Senators Ron Wyden, D-Ore., and Mark Udall, D-Colo., object to NSA’s newly acquired permission to analyze anything that is legally collected under the FISA authorities, including inadvertently collected U.S. persons data. Both senators have proposed an amendment to subject all U.S. persons’ data to an equal standard of legal review, including all of the incidental or accidentally acquired information. This would end the practice of running U.S. persons emails and phone numbers (already on an approved list of selectors — a selector is a piece of identifying information — against any American without an order.

To be clear, NSA hasn’t been randomly running your email or my phone number against the over-collected U.S. persons data; you or I would have already have had to find our way onto a list that is subject is to supervisory level approval. Still, the predicate half of the data is not sufficiently protected, and it ought to be. Again, this is a relatively new practice, so Congress could decide to forbid it entirely or it could pass the Wyden-Udall amendment. The “back-door loophole” would be closed.

The biggest, warranted objection to NSA collection relates to telephone records that companies give to NSA — that is, all of them, and what NSA is able to do with those records. The concern is about subjecting a defined subset of phone records to “contact chaining,” which means automatically sweeping within the call records of Americans without any connection to anything wrongdoing, and without a court order. The intelligence community wants to be able to do this, and says it is extremely valuable. But it represents a direct, if not particularly gruesome, violation of Americans’ expectation of what the government should and should not see. That this analysis is done by computers, without any set of eyes, is only slightly mitigating. There are dozens of ways to square this circle, including the imposition of a special master, a guardian of the information, to hold the data along with automatic oversight protocols. Or perhaps the companies can do the call-chaining themselves, subject to some sort of court-supervised arrangement. Or, the practice could be written out of the law and NSA could be given much more selective access to phone records, albeit with a much expedited process to match the speed of its intelligence requirements. Several bills, including one introduced by Rep. Justin Amash, R-Mich., would require the government to narrow the scope of its requests for data, even down to the level of a specific investigation.

As always, you should read the whole thing.