Monthly Archives: June 2013

Why the NSA is Dangerous

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.

– The NSA’s guidelines for avoiding spying on American citizens or residents are fairly thorough, and for the most part reassuring that they make a conscious effort. However, there are loopholes:

(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.

Known Unknowns

“There are known unknowns; that is to say, there are things that we now know we don’t know. But there are also unknown unknowns – there are things we do not know we don’t know.”

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.

Known Unknowns

– 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.

Unknown Unknowns

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.

This Means War

“Reese Witherspoon is hot. But illegal-search-and-seduction hot?”

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.

“Hello there. I’m a spy. Mind if I come in?” “Sure!”

Another Brief Aside, This Time about Why the NSA Does This

Number of United States Citizens Killed in Terrorist Actions, 20022012: 321 in 11 years

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.

This river is more dangerous than Saddam’s WMDs were in 2003.

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.

Oh wait.

Snowden already fled that country.

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David Brooks is the Worst

If I hadn’t graduated from Rice a year early, my commencement speaker would have been New York Times columnist David Brooks. I dodged a bullet. Brooks’s op-ed today is the worst newspaper column I have ever read.

The past week’s NSA surveillance revelations have been shocking, on one level, and not at all surprising, on another; I’ve been sorting through a lot of opinions and talking to friends with different viewpoints. But maybe we can all take a moment to agree that David Brooks is the worst.

In his column today, Brooks vents out all his intensely personal loathing for Edward Snowden, the former NSA employee and contractor who leaked out details of the U.S. government’s spying on Verizon phone network data and emails, chatlogs, video-chats, and other information from Facebook, Google, Skype, Yahoo!, and Apple users worldwide.

As a quick recap: the Verizon phone records, handed over by government demand and officially sanctioned by a kangaroo court appointed specially to approve such demands, disclose to the NSA all Verizon business (not cell or home) phone users’ call data, except for the actual recorded conversations. (Callers’ names are not disclosed, but given the other information provided, and the existence of Google, they’re easy to find.) Meanwhile, the NSA has direct access to the servers of all the internet companies listed above and more, allegedly without their permission, but insists it only spies on non-citizens of the United States.

Assuming you believe the government when it says it’s not spying on U.S. citizens (and do you? really?), the alleged warrantless entry into American servers might be criminal, and both programs are incredibly broad and terrifying, given that the public was never given a chance to approve or even debate them. Nobody asked us.

But set aside my opinions and listen to David Brooks’s opinion of the whistleblower, Edward Snowden.

David Brooks

While contemplating Brooks’s highly punchable face.

“[Snowden] betrayed honesty and integrity.” This said about a man who revealed dishonesty and deceit in others, and who has so far not been dishonest himself.

“[Snowden] made explicit and implicit oaths to respect the secrecy of the information with which he was entrusted. He betrayed his oaths.” Of course, the same is true of whistleblowers everywhere, from Enron to doctors who believe their patients may commit acts of violence to the soldiers who point out how much sexual assault there is in the U.S. military.

“He betrayed his employers. Booz Allen and the C.I.A. took a high-school dropout and offered him positions with lavish salaries.” Translation: “Why would you ever turn against somebody who gave you a lot of money? You should be thankful and do whatever they say.”

“He betrayed the cause of open government.” He did this by opening up the government to inspection. Brooks does have a point here, though, because Brooks is saying that the Obama administration will only become more secretive after these leaks. That’s true. But it’s not Snowden’s fault if our government responds by behaving even worse. It’s our government’s.

“He betrayed the privacy of us all.” Here Brooks is arguing that now the government’s going to have to secretly spy on the world’s emails without oversight some other way. (Obviously that’s the only option.)

“He betrayed the Constitution.” The ultimate irony: David Brooks really thinks that Snowden “betrayed the Constitution” by exposing a secret government practice exempt by collusion from constitutionally-mandated checks and balances, unaccountable to the people at large, and almost certainly entailing violations, intended or not, of the Fourth and Fifth Amendments. In other words, Snowden betrayed the Constitution by pointing out that somebody else was betraying it.

And then there’s Brooks’s description of Snowden, his analysis of why Snowden leaked the information he did:

“…he appears to be a product of one of the more unfortunate trends of the age: the atomization of society, the loosening of social bonds, the apparently growing share of young men in their 20s who are living technological existences in the fuzzy land between their childhood institutions and adult family commitments. If you live a life unshaped by the mediating institutions of civil society, perhaps it makes sense to see the world a certain way: Life is not embedded in a series of gently gradated authoritative structures: family, neighborhood, religious group, state, nation and world.”

Snowden himself said that he acted out because he was worried about constitutional transgressions and angry that nobody was accountable, and because he saw that it’s only our government’s goodwill that keeps its machinery from being used to build an authoritarian police state. David Brooks says Snowden acted because he’s 29 but hasn’t married or had children, and because he doesn’t feel loyal to his family, country, or church.

Reading David Brooks, you get no idea of what Snowden said or found. You get the idea that an entitled bum who doesn’t know what loyalty is because he doesn’t have kids or a house of worship unilaterally decided to leak some government secrets for kicks. The government, in Brooks’s telling, had nothing to do with it.

Indeed, reading Brooks, you get a portrait of a guy who undermined privacy, honesty, integrity, open governance, and the Constitution. How? The guy revealed that our government is undermining privacy, honesty, integrity, open governance, and the Constitution. The column is all upside-down and opposites, which is understandable, since David Brooks has an ass where his head should be.

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