When I talk about the ongoing National Security Agency surveillance scandals with friends, there are two main reactions: shock and disgust, or total apathy. The second view is best put by two different friends who put it to me this way: “Why should I care? I have nothing to hide.” The U.S. government is running a program that keeps us safer, and if we’re not caught in the net, why be so angsty?
Hearing that blunt reply, I remembered a psychological study conducted a few years ago. Various people were told a story about an adult brother and sister who have sex. It’s consensual, it doesn’t hurt anybody, they have a good time, they use contraception, and nobody ever knows. But they are siblings. The listeners were asked by psychologists: did the brother and sister do something wrong? Almost everybody said “yes.” When asked why the sex was wrong, almost everybody fell silent or answered incoherently.
There is a type of action, then, which our instinct tells us is immoral, but we have a hard time explaining our disapproval. Is the NSA scandal something like that? This essay explains why the answer is no.
What We Know
- The U.S. government keeps limited phone records on American citizens. Customers of at least one phone company, Verizon Business (a separate division from Verizon Cellular), have their phone call “metadata” stored in government servers. That means numbers dialed, duration of call, location of the telephone, everything but the names of the participants and the actual recorded conversation. Some sources say that agreements like this exist with almost every phone company in the United States.
- But actual recorded conversations are stored, too. An NSA program called NUCLEON “intercepts telephone calls and routes the spoken words to a system.” The government has “resolutely refused to offer an estimate of the number of Americans whose calls or e-mails have thus made their way into content databases.”
- A conflicted report suggests that the government can listen to those calls without a search warrant. Apparently Representative Jerrold Nadler (D-NY) heard at a secret Congressional hearing that the process for deciding when to listen to an actual phone call was “simply based on an analyst deciding that.” But then Nadler contradicted himself a few days later, saying that the government had reassured him that the listening takes place after obtaining a warrant.
- Those two statements are compatible because the top-secret court that processes these warrant requests has approved 99.91% of them since 2007. The government says that’s because they submit really good requests. Others say it’s because the court is a powerless rubber-stamp, the judges on it aren’t qualified to pass judgment on national security briefs, and they’re all kind of scared that if a terrorist attack happens, somebody will blame them. Max Frankel writes, “most federal judges are predisposed to defer to executive claims of national security. They are generalists with little experience in evaluating intelligence.” Whatever the reasons, the top-secret court is practically a guaranteed warrant, making the warrants meaningless.
- The U.S. government collects emails, chats, video chats, search records, and other desired internet information from foreign citizens living outside the U.S., using alleged direct access to the servers of Yahoo!, Apple, Google, Facebook, Microsoft, Skype, and other web giants. (Dropbox is being targeted by the feds, too.)
- These companies deny consenting to the supply of this data. If the original disclosures are correct and the U.S. government does access their servers, somebody is lying, either the companies about consenting or the government about having the companies’ permission.
(a) if they spy on a target and then later realize the target is American, they must stop collecting new data immediately, but data already obtained can be kept. See (f).
(b) “If, in order to protect against an immediate threat to the national security, NSA determines that it must take action, on a temporary basis, in apparent departure from these procedures…NSA may take such action.”
(c) “Communications of or concerning United States persons that may be related to the authorized purpose of the acquisition may be forwarded to analytic personnel…”
(d) “As a communication is reviewed, NSA analyst(s) will determine whether it is a domestic or foreign communication…reasonably believed to contain foreign intelligence information or evidence of a crime.”
(e) If a United States resident or citizen is on trial and communicates electronically with his/her attorney using the protected secrecy of attorney-client privilege, that communication can be reviewed by agents for “foreign intelligence information contained therein.”
(f) U.S. citizens’ communications will be destroyed immediately “unless the Director (or Acting Director) of NSA specifically determines” that the data contains foreign intelligence information or even if it “does not contain foreign intelligence information but is reasonably believed to contain evidence of a crime.”
(g) “Maintenance of technical data bases requires retention of all communications that are enciphered or reasonably believed to contain secret meaning…”
What We Don’t Know
It’s time to stop and pay tribute to one of our century’s most underappreciated remarks.
Wikipedia says that this remark by Donald Rumsfeld won the “2003 Foot in Mouth Award,” which is odd because it’s so true and useful. I’m speaking non-ironically. Apply it to the NSA case: there are things we know we don’t know, and things we don’t know we don’t know.
- We don’t know anything about the secret warrant courts: how they work, their proceedings, their deliberations, why they approve 99.91% of NSA requests.
- We don’t know if any of these spying measures have worked. Government spokesmen have claimed that “dozens” of terrorist attacks were stopped because of NSA surveillance, but Senators Ron Wyden (D-OR) and Mark Udall (D-CO), as well as various off-the-record anonymous sources, say that’s just not true.
- We don’t know how many U.S. citizens’ or residents’ phone and email and chat and Skype information is being stored in government warehouses.
- We don’t know the criteria for determining if U.S. citizens’ data “may be related” to an investigation.
- We don’t know how the NSA chooses to spy on our data; we’re assured that they begin accessing records only after identifying a target. We don’t know if this is true, and we don’t know the odds of an ordinary, innocent person’s information being accessed because they were flagged by computer software.
- We don’t know how often all those loopholes are exploited to retain data on U.S. citizens, or even to charge them for crimes accidentally discovered while spying.
By definition, we don’t know these. But I can think of at least one area that counts: abuse of power. We don’t know if any NSA agents have abused their privileges to snoop on data they shouldn’t be looking at. We don’t know if a contractor, or low-level employee, or consultant, or any of the thousands of people with clearance looked into our files just for fun, or to see if they could, or to try and exact vengeance, or because they were in a really stupid romantic comedy.
What All That Stuff Means, Constitutionally
It means that the federal government has almost certainly been violating our Fourth Amendment protections.
Let’s have a look at the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Let’s now have a look at some problems with the NSA, FISA, NUCLEON, PRISM, and so on:
(a) spoken words from domestic telephone calls are “routed into a system”; (b) government officials can listen to domestic calls “simply based on an agent deciding that,” possibly with approval of a court that approves 99.91% of requests; (c) government officials allege they have direct access to the servers of major corporations, which say they did not give permission; (d) data accidentally (and illegally) collected from American citizens can be kept and scanned for potentially damaging material; (e) the NSA may spy on American citizens unchecked in extreme emergencies (as determined by the NSA itself); (f) spies can search materials protected by attorney-client privilege; (g) all encrypted material must be kept, since the system “requires” it; (h) data by or about U.S. citizens can be forwarded to domestic authorities if it contains evidence of any crime, terrorism or not.
Any one of those could be challenged on constitutional grounds, but let’s focus on that last one for a second, as an example.
What We Talk About When We Talk About Fourth Amendment Violations
Have you ever illegally downloaded a song, movie, TV show, or computer program? Have you ever told anybody about it in email, instant message, video chat, or a phone call? Congratulations. You just fell into loophole (h).
This is how it could work. The NSA might open up your data. I don’t know why. That’s a known unknown. But if they do, and they see you saying “I go on [piracy website] and watch Cougar Town for free. Who needs cable?”, they can forward that to the FBI. Blammo. You’re on record violating federal law. And guess what? Since the NSA found the evidence, it’s possible that they’ll say it’s top-secret. The FBI will use your internet service provider’s records to nail you for piracy, so that they don’t have to present the secret NSA file at court, and you’ll never know that you were actually arrested because of an illegal violation of your Fourth Amendment rights. Hell, people might already be in jail because the NSA searched their records. How would we know?
A Brief Aside about Google, Microsoft, Yahoo!, Skype, Dropbox, Apple, Facebook, Etc.
“But I already share all my info with all those companies. It’s not that different if it’s the government.”
Granted, Google knows way more about you than is healthy. But, as Max Frankel writes, “Google and Amazon do not indict, prosecute and jail the people they track and bug.” Also, you consented to share all your information with Google. (Maybe not on purpose, but you did.) You didn’t consent to the government. Heck, that’s the definition of spying.
Another Brief Aside, This Time about Why the NSA Does This
Number of United States Citizens Killed by Firearms (Excluding Combat), 2002-2011: 309,536 in 10 years
Number of United States Residents Killed While in a Canoe or Kayak, 2011: 134 in 1 year
Forget guns. Drownings and collisions to canoers and kayakers are four and a half times as dangerous as terrorists. Even if NSA surveillance did save hundreds of lives, its elaborate spying would be more useful fishing people out of rivers and lakes.
Conclusion: “I Don’t Have Anything to Hide”
First: yes, you do. It’s a certainty that you have committed a federal crime, intentionally or not, at some point in life. Given today’s information age, it’s probable that you’ve confessed to it in an email or on the phone or some other way. And the NSA has the power to find that information and turn it over to authorities who can prosecute you.
Second: it’s not about you. It’s about whether or not we live in a free society.
When the United States was founded, we insisted on basic protections against tyranny and authoritarian rule. “No person shall be deprived of life, liberty, or property, without due process of law.” Today we’ve invented legal arguments to exempt people suspected of terrorist behavior. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Today we’ve invented legal arguments to secretly violate this protection in all manner of ways. “The attorney client privilege is one of the oldest recognized privileges for confidential communications.” Today it can be violated to check for “foreign intelligence.” And we’re sacrificing all these freedoms to a dubious protection against a negligibly tiny danger which threatens almost none of our lives.
The idea that the U.S. is a free country is increasingly a myth. This morning news stories reported that NSA whistleblower Edward Snowden was bound for Russia, then Venezuela, then Ecuador. Ecuador is not a bad place, but earlier, when the word was that he was ticketed for Venezuela, I had an odd thought.
What a poor choice. That’s a country where the government lacks any kind of transparency, and by secretive means can decide to arrest you for a violation of the law you may not even have known about, using courts of dubious merit and an uncontrolled surveillance regime. That’s a country with a systematic disregard for rule of law, cavalier about reinterpreting its constitution to do what it wants. That’s a country which trumps up minimal threats to its well-being in order to frighten its citizens into consenting to dangerous sacrifices of their freedoms.
Snowden already fled that country.