Over 20 congressional bills aim to address the crisis of confidence in NSA surveillance. With Patriot Act author and Republican Congressman Jim Sensenbrenner working with Vermont Democratic Senator Patrick Leahy on a bipartisan proposal to put the NSA's metadata program "out of business", we face two fundamentally different paths on the future of government surveillance.

One, pursued by the intelligence establishment, wants to normalize and perpetuate its dragnet surveillance program with as minimal cosmetic adjustments as necessary to mollify a concerned public. The other challenges the very concept that dragnet surveillance can be a stable part of a privacy-respecting system of limited government.

Pervasive surveillance proponents make two core arguments.

First, bulk collection saves Americans from foreign terrorists. The problem with this argument is that all publicly available evidence presented to Congress, the judiciary, or independent executive branch review suggests that the effect of bulk collection has been marginal. Perhaps, this paucity of evidence is what led General Alexander and other supporters to add cyber security as a backup exigency to justify the program.

The second argument that defenders of mass surveillance offer is that detailed, complex and faithfully-executed rules for how the information that is collected will be used are adequate replacements for what the fourth amendment once quaintly called "probable cause" and a warrant "particularly describing the place to be searched, and the persons or things to be seized". The problem with this second argument is that it combines two fundamentally incompatible elements.

Mass surveillance represents a commitment to near-universal all-seeing gaze, so as to assess and respond to threats that can arise anywhere, at any time. Privacy as a check on government power represents a constitutional judgment that a limited government must have limited power to inspect our daily lives, and that an omniscient government is too powerful for mere rules to restrain. The experience of the past decade confirms this incompatibility. Throughout its lifetime, NSA dragnet surveillance has repeatedly and persistently violated any rules in place meant to constrain it.

After 11 September 2001, and until 2004, the President's Surveillance Programs (PSP) simply operated outside the law. The 2009 inspectors general report (pdf) on these programs explained that, initially, the White House obtained a veneer of legality by soliciting an opinion from the Office of Legal Counsel. It then deployed security clearance strategically to insulate the OLC lawyer who had blessed the illegal program from the scrutiny of OLC's normal internal review processes. After 2004, professionally conscientious lawyers at the Department of Justice forced the White House to modify some of the programs and shift others to collection based on National Security Letters (NSL).

The victory of legality proved shortlived and imperfect. A 2007 inspector general report on NSLs disclosed that, from 2003 to 2005, the FBI created an alternative basis for dragnet surveillance by issuing over 140,000 NSLs that were under-reported to congressional oversight. Most damningly, the FBI abused "exigent letters" as the reported noted:

[By making] factual misstatements in its official letters to the telephone companies either as to the existence of an emergency justifying shortcuts around lawful procedures or with respect to the steps the FBI supposedly had taken to secure lawful process.

These violations were so serious they became the subject of a separate damning report. Later reports (pdf) established that the violations continued unabated through 2006, and that redress measures from 2007 were only partially and imperfectly applied. By the time the last NSL report came out, the Fisa Amendments Act of 2008 had recreated the powers of the original PSP and more, subject to detailed constraints and judicial review. But foreign intelligence surveillance court (FISC) opinions since then suggest that the new rules have also failed.

A 2009 FISC opinion, evaluating the process from 2006 to 2009, dedicated a whole section to "misrepresentations to the court", and stated that the government has "repeatedly submitted inaccurate descriptions" of the process the FISC was reviewing. The court ordered a series of procedural fixes; the NSA solemnly undertook to follow these, and the court permitted it to continue dragnet surveillance subject to the new rules.

Two years later, a 3 October 2011 opinion (pdf) noted:

The court is troubled that the government's revelations regarding NSA's acquisition of internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.

In a by-now-familiar pattern, the NSA was contrite and implemented new procedures, which the court then blessed.

As the Edward Snowden revelations have been accumulating, we see that the pattern has continued unabated. This very week, we learned that the NSA is collecting millions of email address books around the world, producing even richer and more invasive portraits than telephony metadata likely offer.

The NSA continues to evade oversight. This time, it relies on the kind of jurisdictional arbitrage familiar to so many lawless sites the world over: because its technical collection points are physically outside the US, it does not require authorization from either Congress or the Fisa court, even though the dragnet inevitably captures large amounts of data from Americans. The official response, predictably says "we have checks and balances built into our tools". But really, after a dozen years of repeated violations even when the Fisa court or Congress were in the loop, why would we expect these self-monitored procedures to work?

It would be a mistake to imagine that these failures represent faithless or incompetent civil servants. To the contrary, we should assume that these failures come because NSA and FBI counterterrorism agents are faithful and competent civil servants, but are faced with incompatible demands.

Technology has enabled government to have investigative and situational awareness on a scale and scope that were science fiction when the Stasi shut its doors. The "state of emergency" mindset necessary to justify the program in the first place drives those charged with assuring the safety of Americans to always use this technology to its full potential; it also gives them an independent source of legitimacy for their actions – the fierce urgency of necessity.

Their mission clashes with the fundamental premise of privacy as a civil right: that state power is best contained by making the overwhelming majority of what goes on in society invisible to the state. As Justice Alito put it in the supreme court's decision to strike down GPS tracking:

[Historically] the greatest protections of privacy were neither constitutional nor statutory, but practical.

Once the state knows about behavior, it is hard to rely on rules alone to bear the full burden of preventing overreach by those who wield its awesome power. Often, the arguments will be genuine and plausible. How could you possibly justify limiting pervasive surveillance to foreign terrorism and cyber attacks, but not use it to track down a missing child or shut down a ring of pedophiles?

The new power that comes with near omniscience, however, extracts a heavy cost. The ACLU's report on FBI abuses, such as hounding whistleblowers or domestic advocacy groups, documents that the opportunities for abuse are as many as there are officials, subjects, and felt necessities. Rules alone cannot hold back the millions of potential abuses of an omniscient state.

Whether it be the banality of analysts stalking ex-lovers, the inhumanity of careerist prosecutors hounding hacktivists under vague computer laws or using impossibly broad laws like the "material support" statue to pressure innocents to become informers, the crooked timber of humanity – armed with the power of the state and restrained only by the seven fresh bowstrings of superficial legality – will bring failure for constitutional freedoms, predictably, inevitably, tragically.

Congressional critics of bulk collection need to stand firm. Their current plans aim to do away with bulk collection of telephony metadata, and fix some of the loopholes associated with internet bulk collection. Their fight is critical for anyone concerned about pervasive surveillance becoming the new norm, and deserves our solidarity. But we need more.

As long as government is allowed to collect all internet data, the perceived exigency will drive honest civil servants to reach more broadly and deeply into our networked lives. Bringing an end to mass government surveillance needs to be a central pillar of returning to the principles we have put in jeopardy in the early 21st century.