MY colleague Thomas Friedman’s levelheaded take on the National Security Agency eavesdropping uproar needs no boost from me. His column soared to the top of the “most e-mailed” list and gathered a huge and mostly thoughtful galaxy of reader comments. Judging from the latest opinion polling, it also reflected the prevailing mood of the electorate. It reflected mine. But this is a discussion worth prolonging, with vigilant attention to real dangers answering overblown rhetoric about theoretical ones.
Tom’s important point was that the gravest threat to our civil liberties is not the N.S.A. but another 9/11-scale catastrophe that could leave a panicky public willing to ratchet up the security state, even beyond the war-on-terror excesses that followed the last big attack. Reluctantly, he concludes that a well-regulated program to use technology in defense of liberty — even if it gives us the creeps — is a price we pay to avoid a much higher price, the shutdown of the world’s most open society. Hold onto that qualifier: “well regulated.”
The N.S.A. data-mining is part of something much larger. On many fronts, we are adjusting to life in a surveillance state, relinquishing bits of privacy in exchange for the promise of other rewards. We have a vague feeling of uneasiness about these transactions, but it rarely translates into serious thinking about where we set the limits.
Exhibit A: In last Thursday’s Times Joseph Goldstein reported that local law enforcement agencies, “largely under the radar,” are amassing their own DNA databanks, and they often do not play by the rules laid down for the databases compiled by the F.B.I. and state crime labs. As a society, we have accepted DNA evidence as a reliable tool both for bringing the guilty to justice and for exonerating the wrongly accused. But do we want police agencies to have complete license — say, to sample our DNA surreptitiously, or to collect DNA from people not accused of any wrongdoing, or to share our most private biological information? Barry Scheck, co-director of the Innocence Project and a member of the New York State Commission on Forensic Science, says regulators have been slow to respond to what he calls rogue databanks. And a recent Supreme Court ruling that defined DNA-gathering as a legitimate police practice comparable to fingerprinting is likely to encourage more freelancing. Scheck says his fear is that misuse will arouse public fears of government overreach and discredit one of the most valuable tools in our justice system. “If you ask the American people, do you support using DNA to catch criminals and exonerate the innocent, everybody says yes,” Scheck told me. “If you ask, do you trust the government to have your DNA, everybody says no.”
Exhibit B: Nothing quite says Big Brother like closed-circuit TV. In Orwell’s Britain, which is probably the democratic world’s leading practitioner of CCTV monitoring, the omnipresent pole-mounted cameras are being supplemented in some jurisdictions by wearable, night-vision cop-cams that police use to record every drunken driver, domestic violence call and restive crowd they encounter. New York last year joined with Microsoft to introduce the eerily named Domain Awareness System, which connects 3,000 CCTV cameras (and license-plate scanners and radiation detectors) around the city and allows police to cross-reference databases of stolen cars, wanted criminals and suspected terrorists. Fans of TV thrillers like “Homeland,” “24” and the British series “MI-5” (guilty, guilty and guilty) have come to think of the omnipresent camera as a crime-fighting godsend. But who watches the watchers? Announcing the New York system, the city assured us that no one would be monitored because of race, religion, citizenship status, political affiliation, etc., to which one skeptic replied, “But we’ve heard that one before.”
Exhibit C: Congress has told the F.A.A. to set rules for the use of spy drones in American air space by 2015. It is easy to imagine the value of this next frontier in surveillance: monitoring forest fires, chasing armed fugitives, search-and-rescue operations. Predator drones already patrol our Southern border for illegal immigrants and drug smugglers. Indeed, border surveillance may be critical in persuading Congress to pass immigration reform that would extend our precious liberty to millions living in the shadows. I for one would count that a fair trade. But where does it stop? Scientific American editorialized in March: “Privacy advocates rightly worry that drones, equipped with high-resolution video cameras, infrared detectors and even facial-recognition software, will let snoops into realms that have long been considered private.” Like your backyard. Or, with the sort of thermal imaging used to catch the Boston bombing fugitive hiding under a boat tarp, your bedroom.
And then there is the Internet. We seem pretty much at peace, verging on complacent, about the exploitation of our data for commercial, medical and scientific purposes — as trivial as the advertising algorithm that pitches us camping gear because we searched the Web for wilderness travel, as valuable as the digital record-sharing that makes sure all our doctors know what meds we’re on.
In an online debate about the N.S.A. eavesdropping story the other day, Eric Posner, a professor at the University of Chicago Law School, pointed out that we have grown comfortable with the Internal Revenue Service knowing our finances, employees of government hospitals knowing our medical histories, and public-school teachers knowing the abilities and personalities of our children.
“The information vacuumed up by the N.S.A. was already available to faceless bureaucrats in phone and Internet companies — not government employees but strangers just the same,” Posner added. “Many people write as though we make some great sacrifice by disclosing private information to others, but it is in fact simply the way that we obtain services we want — whether the market services of doctors, insurance companies, Internet service providers, employers, therapists and the rest or the nonmarket services of the government like welfare and security.”
Privacy advocates will retort that we surrender this information wittingly, but in reality most of us just let it slip away. We don’t pay much attention to privacy settings or the “terms of service” fine print. Our two most common passwords are “password” and “123456.”
From time to time we get worrisome evidence of data malfeasance, such as the last big revelation of N.S.A. eavesdropping, in 2005, which disclosed that the agency was tapping Americans without the legal nicety of a warrant, or the more recent I.R.S. targeting of right-wing political groups. But in most cases the advantages of intrusive technology are tangible and the abuses are largely potential. Edward Snowden’s leaks about N.S.A. data-mining have, so far, not included evidence of any specific abuse.
The danger, it seems to me, is not surveillance per se. We have already decided, most of us, that life on the grid entails a certain amount of intrusion. Nor is the danger secrecy, which, as Posner notes, “is ubiquitous in a range of uncontroversial settings,” a promise the government makes to protect “taxpayers, inventors, whistle-blowers, informers, hospital patients, foreign diplomats, entrepreneurs, contractors, data suppliers and many others.”
The danger is the absence of rigorous, independent regulation and vigilant oversight to keep potential abuses of power from becoming a real menace to our freedom. The founders created a system of checks and balances, but the safeguards have not kept up with technology. Instead, we have an executive branch in a leak-hunting frenzy, a Congress that treats oversight as a form of partisan combat, a political climate that has made “regulation” an expletive and a public that feels a generalized, impotent uneasiness. I don’t think we’re on a slippery slope to a police state, but I think if we are too complacent about our civil liberties we could wake up one day and find them gone — not in a flash of nuclear terror but in a gradual, incremental surrender.
Secrets, Non-Secrets and Leaks
Por Andrew Rosenthal [The New York Times, 22/6/13]
Sometimes you can understand why the government keeps secrets –because those secrets could endanger lives or derail military operations, or simply because they might be embarrassing. No one should have been shocked when the Obama administration was outraged at Edward Snowden’s leaks of documents describing massive surveillance of Americans by the National Security Agency.
But sometimes it seems like the government chooses secrecy for the sake of secrecy. Take the two new documents in the Guardian yesterday, which set out the rules the N.S.A. follows in pursuit of “foreign intelligence information” to determine whether a target is a U.S. person (a citizen or legal resident of this country) and therefore exempt from surveillance without a specific warrant. The other lays out the rules for “mitigating” information about Americans that might be swept up inadvertently while spying on a non-U.S. person (which happens all the time).
The documents should have been made public many years ago. And they should be reassuring, but they are not, entirely.
We’ve known about the existence of such procedures for years. They were embedded in the Foreign Intelligence Surveillance Act and in the FISA Amendments Act signed by President George W. Bush in 2008, which recklessly allows eavesdropping on a broad scale, without any particular cause for suspicion, even without a target.
People said the authority could be abused to spy on Americans without a warrant, but the Bush administration said there were powerful safeguards against that. The Obama administration used that argument to kill a constitutional challenge to the FISA amendments in the federal courts.
Now we can see these procedures, and my first reaction was to wonder why on earth they were withheld, apart from the disturbing indifference of Presidents Obama and Bush to disclosure on matters of intelligence and surveillance. After all, President Obama and other officials have been assuring Congress and the public that the N.S.A. is not collecting Americans’ communications on a mass scale.
But as the American Civil Liberties Union pointed out, “The procedures contemplate not only that the N.S.A. will acquire Americans’ communications but that it will retain them and possibly disseminate them to other U.S. government agencies and foreign governments.” When there is evidence of a crime or “foreign intelligence information,” the communications can be retained forever. Other communications can be kept for five years.
That net can be huge, because the FISA amendments allow the government to conduct surveillance without any probable cause or individualized suspicion, and because “foreign intelligence information” is so broadly defined that it includes information even about “the foreign affairs of the United States.”
The documents allow the N.S.A. to assume someone is not a U.S. person in the absence of evidence that they are. The A.C.L.U. said the procedures even define attorney-client privilege as covering only people who have been indicted in this country. Even in that case, the N.S.A. may retain communications if they include that elusive foreign intelligence information, although they may not share it with prosecution lawyers.
On the other hand, the A.C.L.U. contends, if the N.S.A. inadvertently picks up communication between a lawyer and a client at the Guantanamo Bay prison, nothing stops it from sharing the information with military prosecutors. The privilege does not seem to apply to American lawyers who have clients or contacts in other countries.
These newly available procedures demonstrate an effort to avoid collecting Americans’ routine communications. But they are full of so many loopholes that they render Mr. Obama’s assurances that there is no mass-scale surveillance of Americans difficult to believe.
The Criminal N.S.A.
Por Jennifer Stisa Granick e Christopher Jon Sprigman [The New York Times, 28/6/13]
THE twin revelations that telecom carriers have been secretly giving the National Security Agency information about Americans’ phone calls, and that the N.S.A. has been capturing e-mail and other private communications from Internet companies as part of a secret program called Prism, have not enraged most Americans. Lulled, perhaps, by the Obama administration’s claims that these “modest encroachments on privacy” were approved by Congress and by federal judges, public opinion quickly migrated from shock to “meh.”
It didn’t help that Congressional watchdogs — with a few exceptions, like Senator Rand Paul, Republican of Kentucky — have accepted the White House’s claims of legality. The leaders of the Senate Intelligence Committee, Dianne Feinstein, Democrat of California, and Saxby Chambliss, Republican of Georgia, have called the surveillance legal. So have liberal-leaning commentators like Hendrik Hertzberg and David Ignatius.
This view is wrong — and not only, or even mainly, because of the privacy issues raised by the American Civil Liberties Union and other critics. The two programs violate both the letter and the spirit of federal law. No statute explicitly authorizes mass surveillance. Through a series of legal contortions, the Obama administration has argued that Congress, since 9/11, intended to implicitly authorize mass surveillance. But this strategy mostly consists of wordplay, fear-mongering and a highly selective reading of the law. Americans deserve better from the White House — and from President Obama, who has seemingly forgotten the constitutional law he once taught.
The administration has defended each of the two secret programs. Let’s examine them in turn.
Edward J. Snowden, the former N.S.A. contract employee and whistle-blower, has provided evidence that the government has phone record metadata on all Verizon customers, and probably on every American, going back seven years. This metadata is extremely revealing; investigators mining it might be able to infer whether we have an illness or an addiction, what our religious affiliations and political activities are, and so on.
The law under which the government collected this data, Section 215 of the Patriot Act, allows the F.B.I. to obtain court orders demanding that a person or company produce “tangible things,” upon showing reasonable grounds that the things sought are “relevant” to an authorized foreign intelligence investigation. The F.B.I. does not need to demonstrate probable cause that a crime has been committed, or any connection to terrorism.
Even in the fearful time when the Patriot Act was enacted, in October 2001, lawmakers never contemplated that Section 215 would be used for phone metadata, or for mass surveillance of any sort. Representative F. James Sensenbrenner Jr., a Wisconsin Republican and one of the architects of the Patriot Act, and a man not known as a civil libertarian, has said that “Congress intended to allow the intelligence communities to access targeted information for specific investigations.” The N.S.A.’s demand for information about every American’s phone calls isn’t “targeted” at all — it’s a dragnet. “How can every call that every American makes or receives be relevant to a specific investigation?” Mr. Sensenbrenner has asked. The answer is simple: It’s not.
The government claims that under Section 215 it may seize all of our phone call information now because it might conceivably be relevant to an investigation at some later date, even if there is no particular reason to believe that any but a tiny fraction of the data collected might possibly be suspicious. That is a shockingly flimsy argument — any data might be “relevant” to an investigation eventually, if by “eventually” you mean “sometime before the end of time.” If all data is “relevant,” it makes a mockery of the already shaky concept of relevance.
Let’s turn to Prism: the streamlined, electronic seizure of communications from Internet companies. In combination with what we have already learned about the N.S.A.’s access to telecommunications and Internet infrastructure, Prism is further proof that the agency is collecting vast amounts of e-mails and other messages — including communications to, from and between Americans.
The government justifies Prism under the FISA Amendments Act of 2008. Section 1881a of the act gave the president broad authority to conduct warrantless electronic surveillance. If the attorney general and the director of national intelligence certify that the purpose of the monitoring is to collect foreign intelligence information about any nonAmerican individual or entity not known to be in the United States, the Foreign Intelligence Surveillance Court can require companies to provide access to Americans’ international communications. The court does not approve the target or the facilities to be monitored, nor does it assess whether the government is doing enough to minimize the intrusion, correct for collection mistakes and protect privacy. Once the court issues a surveillance order, the government can issue top-secret directives to Internet companies like Google and Facebook to turn over calls, e-mails, video and voice chats, photos, voiceover IP calls (like Skype) and social networking information.
Like the Patriot Act, the FISA Amendments Act gives the government very broad surveillance authority. And yet the Prism program appears to outstrip that authority. In particular, the government “may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.”
The government knows that it regularly obtains Americans’ protected communications. The Washington Post reported that Prism is designed to produce at least 51 percent confidence in a target’s “foreignness” — as John Oliver of “The Daily Show” put it, “a coin flip plus 1 percent.” By turning a blind eye to the fact that 49-plus percent of the communications might be purely among Americans, the N.S.A. has intentionally acquired information it is not allowed to have, even under the terrifyingly broad auspices of the FISA Amendments Act.
How could vacuuming up Americans’ communications conform with this legal limitation? Well, as James R. Clapper Jr., the director of national intelligence, told Andrea Mitchell of NBC, the N.S.A. uses the word “acquire” only when it pulls information out of its gigantic database of communications and not when it first intercepts and stores the information.
If there’s a law against torturing the English language, James Clapper is in real trouble.
The administration hides the extent of its “incidental” surveillance of Americans behind fuzzy language. When Congress reauthorized the law at the end of 2012, legislators said Americans had nothing to worry about because the surveillance could not “target” American citizens or permanent residents. Mr. Clapper offered the same assurances. Based on these statements, an ordinary citizen might think the N.S.A. cannot read Americans’ e-mails or online chats under the F.A.A. But that is a government fed misunderstanding.
A “target” under the act is a person or entity the government wants information on — not the people the government is trying to listen to. It’s actually O.K. under the act to grab Americans’ messages so long as they are communicating with the target, or anyone who is not in the United States.
Leave aside the Patriot Act and FISA Amendments Act for a moment, and turn to the Constitution.
The Fourth Amendment obliges the government to demonstrate probable cause before conducting invasive surveillance. There is simply no precedent under the Constitution for the government’s seizing such vast amounts of revealing data on innocent Americans’ communications.
The government has made a mockery of that protection by relying on select Supreme Court cases, decided before the era of the public Internet and cellphones, to argue that citizens have no expectation of privacy in either phone metadata or in e-mails or other private electronic messages that it stores with third parties.
This hairsplitting is inimical to privacy and contrary to what at least five justices ruled just last year in a case called United States v. Jones. One of the most conservative justices on the Court, Samuel A. Alito Jr., wrote that where even public information about individuals is monitored over the long term, at some point, government crosses a line and must comply with the protections of the Fourth Amendment. That principle is, if anything, even more true for Americans’ sensitive nonpublic information like phone metadata and social networking activity.
We may never know all the details of the mass surveillance programs, but we know this: The administration has justified them through abuse of language, intentional evasion of statutory protections, secret, unreviewable investigative procedures and constitutional arguments that make a mockery of the government’s professed concern with protecting Americans’ privacy. It’s time to call the N.S.A.’s mass surveillance programs what they are: criminal.
Jennifer Stisa Granick is the director of civil liberties at the Stanford Center for Internet and Society. Christopher Jon Sprigman is a professor at the University of Virginia School of Law.
Obama and the crumbling of a liberal fantasy hero
Por Gideon Rachman[Financial Times, 2/7/13]
The most vociferous critics expected far more than a mere mortal could deliver
It has taken a long time, but the world’s fantasies about Barack Obama are finally crumbling. In Europe, once the headquarters of the global cult of Obama, the disillusionment is particularly bitter. Monday’s newspapers were full of savage quotes about the perfidy of the Obama-led US.
Der Spiegel, the German magazine that alleged that America’s National Security Agency has bugged the EU’s offices, thundered that “the NSA’s totalitarian ambition … affects us all … A constitutional state cannot allow it. None of us can allow it.” President François Hollande of France has demanded that the alleged spying stop immediately. Le Monde, Mr Hollande’s home-town newspaper, has even suggested that the EU should consider giving political asylum to Edward Snowden, the NSA whistleblower.
But if liberals wanted to compile a list of perfidious acts by the Obama administration, the case of the bugged EU fax machine should probably come low down the list.
More important would be the broken promise to close the Guantánamo detention centre and – above all – the massive expansion of the use of drone strikes to kill suspected terrorists in Pakistan, Yemen and elsewhere, It has gradually dawned on President Obama’s foreign fan club that their erstwhile hero is using methods that would be bitterly denounced if he were a white Republican. As Hakan Altinay, a Turkish academic, complained to me last week: “Obama talks like the president of the American Civil Liberties Union but he acts like Dick Cheney.”
It is not just Mr Obama’s record on security issues that disappoints the likes of Mr Altinay. Liberals in Turkey, Egypt, Russia, Iran and elsewhere complain that the US president has been far too hesitant about condemning human rights abuses in their countries. Or to adapt Mr Altinay’s complaint: when it comes to foreign policy, Mr Obama campaigned with the human rights rhetoric of Jimmy Carter but has governed like Henry Kissinger.
Yet those who argue that the world was duped and Mr Obama is simply a fraud are making a mistake. Before disappearing into a lather of anger and disappointment, the president’s critics should consider some counter-arguments.
First, some of the decisions that Mr Obama has made that liberals hate are partly a result of some other decisions that they liked. Foreigners have largely applauded the Obama administration’s decision to wind down the wars in Iraq and Afghanistan. But, if you are not going to go after your enemies on the ground, you may need other methods. Mr Obama’s controversial expansion of the drone strike programme is closely linked to his reluctance to deploy troops on the ground.
Similarly, Mr Obama has rightly received some credit for his decision to end torture of terrorist suspects, including such practices as waterboarding. But the need to gather information on terror threats remains – and the massive expansion of electronic monitoring is partly a response to that.
Europeans respond that bugging the EU’s Washington office has nothing to do with the “war on terror”. True enough – but is it really so surprising that allies sometimes eavesdrop on each other? The British have occasionally debated whether they should spy on the Americans – and only turned the idea down on the grounds that they would inevitably be caught, causing severe damage to the “special relationship”. The French are thought to have conducted commercial espionage, aimed at America. The Israelis spied on the US – as the conviction of their agent, Jonathan Pollard, confirmed.
The current European backlash against Mr Obama is reminiscent of a similar process of disillusionment undergone by American liberals in recent years. In one column, Maureen Dowd of the New York Times compared Mr Obama unfavourably to a fictional president, portrayed by Michael Douglas, in a film. This drew a sharp response from Mr Obama when, in a recent speech, he called out to Mr Douglas – “Michael, what’s your secret, man. Could it be that you were an actor, an Aaron Sorkin liberal fantasy?”
It is not entirely Mr Obama’s fault that he became the vessel into which liberals all over the world poured their fantasies. Of course, like any politician, he pumped up expectations when running for office. But when Obama-mania really took off in 2008, it swiftly moved into a realm beyond reason. What was candidate Obama meant to say to the 200,000 Berliners who turned out to cheer him that year – “Go home guys, this is silly”? When the new president was given the Nobel Peace Prize, simply for existing, all he could do was graciously accept.
It is perfectly legitimate to argue that Mr Obama should have done more to cut back the rapidly growing secret state that he inherited when he took office. The combination of a “war on terror” and the new world of “big data” has created possibilities and pressures – and Mr Obama may have made some wrong calls in response. Yet the US president has had to balance a variety of pressures – including the continuing existence of a terrorist threat and the entrenched power of the intelligence world.
Mr Obama was living in a real universe, full of hard choices. It was his overheated critics who lived in a fantasy world.