From Mr. Maciej: ”Simon’s fundamental argument…is mistaken in a number of important ways, and…some of this reflects our failure as technologists to communicate what modern surveillance can do. First, there is the scope of the order. The Baltimore operation, and others like it, were limited to a specific criminal investigation. They were obtained under a warrant setting limits on what would be collected, and for how long. The NSA program is universal and appears to be open-ended. Information is collected in aggregate. The program operates under the authority of secret court order, not a warrant. It is not clear whether the Administration even believes this type of surveillance requires a court order.”
He goes on to suggest that unlike straight-up law enforcement, the NSA data will be used domestically within investigations by a secret national security agency only, and eschews mention of the FBI in particular.
Well, let’s begin with this common-sense notion of scope itself invalidating the NSA program, and proceed to this legal fundamental: If something is violation of privacy and civil liberties, then it is. If it isn’t, it isn’t. And what I am arguing, and Mr. Maciej is ignoring, is that phone metadata — because it has never had any Fourth Amendment privacy protection under the law – is obtainable by ordinary law enforcement on thousands, or tens of thousands or even hundreds of thousands of calls by ordinary citizens without a warrant. If this is so — and it is — then is Mr. Maciej seriously arguing that the privacy rights of tens of thousands of Baltimoreans can be violated, but that of tens of millions of Americans, not? Really? I know that millions are more than tens of thousands, but does anyone think a legal standard shifts at say, the 54,750th violation of civil rights, or the 103,407th? I know it’s an emotional thing imagining us, all of us, and not some forelorn Verizon customers stuck in West Baltimore or East St. Louis, giving up some of our privacy, but hey, good luck running that passion up to U.S. Supreme Court.
Again, as Mr. Mooney would declare: ”America, it’s your nigger wake up call.”
Yes, I’m going there, because why the hell not? Because the other America, the part that has kicked up and anted its required share of privacy and government intrusion for our crime suppression efforts, they’ve been there for a long time now. Those arguing about scope are saying, in a backhanded way, that thousands of Baltimoreans, predominantly black, can have their data collected for weeks or months on end because they happened to be using a string of North Avenue payphones, because they only have the geographic misfortune to live where they do. And it’s the same thing when it’s tens of thousands of Baltimoreans, predominantly black, using a westside cell tower and having their phone data captured. That’s cool, too. That’s law and order, and constitutionally sound law and order, at that. But wait: Now, for the sake of another common societal goal — in this case counter-terror operations — when it’s time for all Americans to ante in with the same, exact legal intrusion to their privacy, the white folks, the middle-class, the affluent go righteously, batshit, Patrick-Henry quoting crazy? Really? Where have you fellas been the last thirty fucking years? If something is an affront to privacy and civil liberties, it is the same legal affront for tens of thousands as for tens of millions. In fact, there is legal logic that suggest, credibly, that by including the phone data of all Americans in the NSA datapile, the actual constitutional affront to any individual in this case is actually less.
Consider the DWI checkpoint. Stop every car, and such checkpoints stand. Stop only selective cars, no. But if every car traveling down that stretch of road is stopped and every driver examined, then the checkpoints are constitutionally sustainable. And of course, the acquisition of phone metadata doesn’t actually rise to the level of intrusion of a DWI checkpoint. No car stop, no breathalyzers, no questioning of the drivers or occupants. It is the legal equivalent of cops standing at the side of the road, and noting the time, direction, license tags, and description of occupants for every car.
As to Mr. Maciej’s stated contention that the Baltimore case obtained the phone data tens of thousands of Americans on a warrant, he is simply wrong. Again, a court order is not a wiretap warrant. It is the equivalent of a subpeona. And yes a court order was issued in Baltimore to put DNRs on those pay phones, or capture all the cell calls off a tower, but, too, a court order was also obtained to gather this NSA datapile. Apple meet apple. That effort to suggest a different legal standard was false on its face.
His claim that the NSA program is open-ended is true in only in the sense that the court order could be renewed — and was renewed at regular intervals repeatedly over a period of years. But the Baltimore phone data captures off cell phone towers or pay phones? If they continued to yield valuable information for investigators, they, too, could be renewed continually as well. Indeed, there have been DNRs and even wiretaps on phones for years at a time in domestic cases, when the monitored phones continued to yield information valuable to investigators. Apple, again meet apple.
His notion that metadata from cell calls now includes GPS information and therefore can geographically track individuals to a greater degree than stationary phones is true. Times have changed, and location information on a mobile phone is indeed more valuable than on a stationary phone. But again, Americans have been giving up their cell phone metadata long before this NSA program. For purposes of this point, simply ignore the pay phone example and focus instead on the prolonged capture of cell calls off of a tower. Now, again, we are looking at a pair of apples: Same cellphone metadata coming off cell towers as in what the NSA is now piling up.
As to the argument that it is the NSA alone that is responsible for this program and its actual usage, I don’t think this is accurate either. NSA is engaged because of its computing capability, certainly, but at the point at which the data identifies a phone subscriber of interest, it will actually be the FBI — the agency responsible for domestic counter-intelligence and counter terror — that will be responsible for the fundamentals of the probe, and that will have the investigative jurisdiction. Why is the FBI coordinating with the NSA, a national security entity with no domestic authority, at all? Because in the wake of 9-11, when information on that conspiracy had not been passed between intelligence agencies and law enforcement, legislation was passed to allow more cooperation. And also, if you think the government is going to fund the FBI to the tune of building them the same computer capability as the NSA, well, no. Money is money. On a limited, jurisdictional level, the dynamic is the equivalent of a county police department having no trace lab and sending all its trace evidence for analysis to the FBI, or its ballistics work to the ATF labs. I understand, of course, that this marriage is far more fraught, politically and constitutionally, and that the risks of governmental overreach are far greater than allowing local enforcement to avail itself of federal expertise, even in crimes with no federal jurisdiction. One can argue endlessly the risks – and one should. What you can’t argue, as Mr. Maciej does, is that it’s a brave new world in which the jurisdictional requirements of domestic investigation have passed to the spy agencies. No, the NSA guys are not going to be running around in black suits as if they are domestic law enforcement, investigating whatever intelligence is gleaned from the datapile. It’s still going to be the FBI, as it ever was.
Strangely, to my reading of his essay, Mr. Masiej doesn’t actually directly reference the major specific legal difference between the methodology of the Baltimore cases and the NSA program. It’s this: Both investigative efforts are predicated on investigators attempting to track suspect phone numbers through a communications medium and obtain information on possible co-conspirators. But in the Baltimore cases, an original target predates and provokes the capture of the other call data — and the necessary and legal intrusion into the communications data of uninvolved citizens. Not so in the NSA program. The agency is setting up the datapile in advance of the suspect numbers it hopes to run through the haystack. Justification?
Well, consider that the average life of a cellphone in the echelons of a competent terror organization might be days at best before that cellphone is dumped and a new phone requisitioned. And consider the size of the haystack. I’ll leave it to the technologists here to answer how long it would take the government, upon acquisition of a good suspect number, to ring up the Verizon security office and have metadata from the last five years of billions and billions and billions of U.S. phone calls downloaded, shipped to Utah, acquired, and made ready for a data run. Or for Verizon to do that work itself. The goal here is proactive counter-terror work. Time itself matters. And I’m guessing the reacquisition of the the vast haystack takes more than a day or two, at least on the Verizon end, never mind from a dozen other U.S. phone carriers. By then, the suspect phone has gone dead. Exigent circumstances is the legal argument here, and I’m guessing that specific phrase is right there in the affidavit in support of that Verizon court order and others like it.
No, all in all, the run-up of precedent necessary for the creation of this particular database, for this particular purpose, contains more legal foundation and strategic logic than Mr. Masiej or other critics apparently want to credit. He has short-sold that. And so have they. Where such critics and I fully agree, is as follows:
Unlike ordinary law enforcement, Mr. Masiej’s asserts that the program is administered by federal judges who are part of the FISA court for national security issues and this court, operating without public oversight, is more susceptible to tolerating or approving the misuse of the data. He believes that they cannot provide sufficient public oversight of its rulings or treatment of defendants, or even address purposeful affronts to privacy and civil liberties. I, too, believe this is exactly, fundamentally true.
Finally, an apple meets an orange worthy of note. And of course, it is here where someone who is worried about the systemic risks of this kind of surveillance, and the potential for authoritarian abuses, might plant a flag of real dissent and demand real change. This is systemic, and structural, and as a problem it is going to keep coming up continually regardless of what technology throws at our democracy over the next ten or thirty or fifty years. This is where the barricades need to be. And reform of the systemic is the only practical hope we have of rationalizing the necessary and continual conflict that will accompany the introduction of every single new technological capability. There will always be a viable use, and always a potential for misuse, and a system that is capable of measuring the potentials and risks and then writing, keeping and enforcing the rulebook is the fundamental goal here. And yet the scare-tactics of this NSA leak and the litany of totalitarian imaginings that accompany the leak — all of this has taken eyes off the prize.
Being a technologist, as he puts it, Mr. Masiej’s greater point, beyond the secrecy and lack of accountability in the FISA oversight, is that one can’t apply the past to the future when one considers the formidable possibilities for human monitoring that this metadata and this level of modern computing offers. Let me stipulate to this, once and for all. I understand the capabilities of the NSA and I concede that this data can be abused and that, certainly, the risks are higher than for previous uses of such data, just as the benefits of utilizing the data are now more advanced because of digital technology’s advances. But again, all law enforcement capability can be abused: A 9mm on a patrolman’s hip can take human life in an unjustifiable manner, a search warrant can be used to plant evidence, informants can be used to manufacture false probable cause, and interrogation rooms can be used to beat on people until they implicate themselves and others. Yet we continue to all police to arm themselves, use informants for cause, write search warrants and talk to reluctant people in small, windowless and unsupervised rooms.
At no point in the legal history of the United States have we ever proscribed the legitimate use of a given technology or law enforcement asset because of its imagined possibilities for misuse. There’s no precedent for such. The entire systemic construct of our legal system is predicated on allowing that which is done legally, and trying to prohibit or even punish that which is done with the same methodologies illegally. If, despite the moral and legal neutrality of the asset itself, the technologists are going to argue against the use of the asset by suggesting that digitization and computerization has now reached a point at which we can’t control the misuse of our own science, they would do well to address the reality of a recent unrelated, but relevant Supreme Court decision:
The government is now allowed, at the point of arrest, to acquire the DNA of all arrestees for purposes of maintaining a DNA data base for law enforcement use. Think about this: Taking samples of an unconvicted arrestee’s singular human identifying essence from his person is certainly more invasive than acquiring his phone metadata. And the potential for abuse is extraordinary. We’ve all been witness to the repetitive scandals involving lab techs and criminologists around the country who have wrongly manipulated the science of their posititons to affirm prosecutions. Evidence is always suspectible to being fabricated or planted, but now the collection of data by the government involves a singular marker of identity that is very close to a guarantor of criminal conviction.
This Supreme Court decision arrived almost in tandem with the revelations about this datapile. It hasn’t received a hundredth of the same angst from civil libertarians. But more to the point, the DNA decision shows exactly how much of a long-shot argument it will be to convince this Supreme Court that scientific and technological capabilities aren’t inherently neutral, and that an argument about possible misuse isn’t akin to urging society, in fear of such, to abandon the practical possibilities of science and technology. Yet, foolishly, I believe that is where Mr. Maciej and others are suggesting we erect the barricade.
Given the last few decades and the reality of this Supreme Court, I think they neither have a clue nor a chance in hell..
* * *
The question I keep asking is why this datapile?
Again, if the government wishes to target political dissidents, or members of an alienated group, or critics of a given program or policy, or members of an ethnic minority — they can absolutely obtain all of the phone metadata on those targets through ordinary domestic channels. They don’t have to go through the NSA. In fact, there is a practical judicial and political incentive to steer clear of the NSA program, knowing that if such misuse ever surfaces — either at the FISA court, or in front of congressional critics, or even in a public leak of the kind we just experienced — then that misuse will put this unique program in political danger for no necessary reason. Again, all they need is a subpeona that is writeable and signable on the most generalized and non-specific cause. A run-of-the-mill federal agent, doing domestic investigative work can go to any run-of-the-mill District Court judge to get the court order and never think even once about the Utah program.
I understand that the fears of technologists such as Mr. Maciej are rooted in the global aspect of the metadata pile over in Utah. Goodness, that’s everyone’s data in there. That’s billions upon billions of phone calls from millions upon millions of Americans. If they start running the algorhithms on that and coming up with whole classes of people to mess with, what then? How do we respond to a secret program that throws thousands onto no-fly lists or into dungeons without cause? How do we guard against a proliferation of false positives? To which the answer is again, this: How do we guard against it now?
Does anyone think that the Department of Homeland Security doesn’t flag everyone traveling to and from certain areas of the world, or that this department or any number of other domestic agencies can’t obtain the phone data of citizens and residents alike, legally? Or that the pre-existing federal authorities can’t toss people wrongly on to a no-fly list based on duplicative names, or inconclusive data, up to and including a handful of non-criminal calls to the wrong country code? All of that happens without this program. To use the NSA datpile and prosecute someone for domestic crimes other than connections to terrorism? Again, why go to Utah? You’re an FBI agent and you wanna find out about General Petraeus and his girlfriend? Go get the phone data. You want to target the AP and Fox for talking to government leakers? Go back to the same U.S. District judge and get the order signed, then walk it over to Verizon. You want to go after the Occupy leaders and track their movements? No worries. Pull the names from newspaper quotes and go get the metadata. You have a fella with an Arabic name who bought a one-way ticket from LaGuardia to Reagan? Run him, no problem. If we’re worried about abuse of this stuff, then nothing — nothing — in the current legal reality of the United States of America stands in opposition right now.
Only if you believe, at the highest end of the conspiratoral sum of all fears, that this particular datapile is going to be used to run the phone activites and GPS data on 300 million Americans all at once, and then, dump hundreds of thousands or millions onto no-fly lists or into the in-boxes of a finite list of federal agents can you indulge the argument that this particular program transforms law enforcement’s existing capability. But as I keep saying, the computer run is the quick, easy part. Behind that, a human has to do the work of actually messing with the equally human target. Even the actual process of harrassing and abusing another individual requires, alas, actual manhours.
Mr. Maciej’s best argument, that of the lugubrious false positives that festoon the no-fly list, actually contains the undoing of his position with regard to this proscribed and anonymous use of this particular NSA data capture: ”After 2001,” he writes, “this list rapidly expanded to thousands of names, with no avenues of appeal and no way to even check whether your name appeared in the document, to the point where the government finally had to improvise a ‘redress’ policy for travelers who found themselves living out a Kafka novel.”
Indeed. And this NSA datapile did not even begin to exist until 2006. The Kafkaesque excesses of the no-fly list — and similar government overreach — will be there regardless of what happens to this program. Just as the domestic suppression of dissents, if it becomes the priority of an American administration, will have the ready use of phone metadata through the usual channels. Just as any hunt for a reporter’s sources will. Just as this data has always been readily available, without warrant, to American law enforcement ever since the courts determined it has no Fourth Amendment protection — a legal fact that predates 9-11 by decades. All of that goes on.
Which brings us back to the point that Mr. Maciej makes that I continue to argue myself: The FISA process and its court are so completely shrouded in unaccountable secrecy that it is an unworkable apparatus for democracy. Independent review and oversight, with teeth, is the necessity here. And that oversight needs to have a healthy number of knowledgeable civilians — duly vetted for national security — who are professionals in the business of maintaining constitutional guarantees and civil liberties. There needs to a congressional review process that can access the investigative doucmentation and arguments contained in affidavits for all FISA programming and investigative ventures — and the decisions of the court need to be available to the vetted members of the intelligence committees. There needs to be periodic reporting — a general report-card of sorts — on the degree of civil liberties instrusions undertaken by the FISA process that is available for public review, even if such a document would be necessarily general about methodologies employed.
This is the barricade. This is the fight: The FISA secrecy is too much for this edifice to exist and still ensure a credible and meaningful response to civil liberties affronts. This much secrecy, this much darkness can’t sustain itself within a democracy. The need to keep national security secrets is a rational one, but much more balance — and sunlight — will have to be tolerated for Americans to be comfortable that these agencies are doing what they claim, and not what they deny. And further, given the capacity for authoritarian overreach that always exists, for the system to right itself after the inevitable instances of abuse. Mr. Obama’s claims of ”transparency” with regard to this NSA program, rooted as they are in the current FISA logic, and his claims to “welcome a debate” about data-mining, its purposes, uses and possible misuses, fall flat because they are flat. In a void this dark and complete, no one can even know what they ought to be debating.
* * *
The worst-case scenarios for databases, and powerful computing, and the geometric increase in damage that can be done by marrying technology with authoritarianism offer plenty of legitimate worry from which Mr. Masiej and others can conjure a fearful future. But, too, it always amazes me when those who would declaim for the fearful power of technology on the one hand, magically fail to account for its capabilities on the other. Certainly, the technology of mass killing has been advancing along with other human sciences, and certainly what was not achievable in terms of terror decades ago becomes more practical by dint of the same long march of technology.
Should we embrace a surveillance state to avoid or reduce the possibility of terror? Of course not. But is it inconceivable that we might at points, compromise the ideals of complete security and complete privacy? Is not the hard work of self-governance evident in such compromise? And Mr. Maciej needs to consider some realpolitik here. In the wake of a successful terrorist act, the singular worst-case scenario for those worried about authoritarian overreach is to have the first government official sit in front of the first congressional panel, and demonstrate, with a flow chart, how we’ve now uncovered, forensically, connections and communications that we might have discovered earlier had we actually used our data-intercept capability, rather than shut it down for privacy concerns. At that point, the scope of actual civil liberty and privacy transgressions, rather than theoretical ones, will make all of us arguing over this program, used this way, at this moment, seem antique.
But here and now, I can’t help but look at the actual affront to individual Americans that this datapile in Utah requires and compare it to what America routinely requires of its own underclass and working class. Our capacity for indifference when someone else is carrying the weight is just astounding. And our equal capacity for righteous affront when even some modest share of the same load lands on us is, to me, shameful.
And this, too, is why I won’t climb the barricade where Mr. Maciej thinks I should. Because to do so only at those places where the cost is to one America and not the other is to assure that only one part of our country will continue to sacrifice, and that the rest of our nation will remain inert while real affronts to civil liberties continue.
The drug war has gone on for as long as it has because of who it targeted and who it did not. And at every point when ordinary, middle-class Americans are given a chance to disassociate from the struggle of others — whenever they are given a buyout from the real costs of maintaining a policy or upholding a societal value — they take it and run.
Think otherwise. Take a look at 50,000 dead on the other side of the Rio Grande, a genocide that middle-class America quietly tolerates in order to maintain both its drug prohibitions and its drug appetite. We’re so principled, we’re willing to fight our or war on drugs to the last Mexican. Or look at what it means to be a person of color in New York City and endure a policing culture of stop-and-frisk. That’s Americans stopped on the street and body searched, physically, without legitimate probable cause. Amid these standardized requirements for certain Americans, in certain places to sacrifice on behalf of the commonweal, the high whine of others who cannot bear to have their anonymous phone data sitting in a pile with 300 million fellow Americans — this is unlikely to engender my allegiance or support. Especially so, given that I regard counter-terror to be a more legitimate policy and goal than our drug war. One has actually brutalized the poor, reduced our actual civil rights, and created a vast American gulag. The other, I am told, might, in the future, do some of those things. Yes, thanks for the warning.
But me, I’m glad my Verizon data is in that pile somewhere. I’m an American and I’ve been made to ante, for a program that has a legitimate and practical application against a certain and fixed evil. I’m a liberal, generally. I actually do believe that there is, or needs to be a social compact as well as a lattice of strong individual liberties. I believe in both liberty and responsibility and that it is in the necessary tension between those things that great nations and great societies can be build. Liberty along guarantees personal freedom and little else of societal ambition; responsibility alone, without liberty, is tyranny. There are Americans who have been asked to do with a lot more responsibility, and less liberty than the rest of us. Some of them live a dozen blocks from where I do, and they’re struggling. And if they can give at the office, so can I.
* * *
A month or so ago, I was in the U.K. arguing the drug war. And I was asked a question about what I thought about the success of legislation to normalize the use and possession of marijuana in various states. By the time my answer was reduced to 140-characters or less, I had been recorded as being opposed to such normalization. It was an unequivocal, and almost inexplicable position, if you know my overall arguments about drug position.
And yet, my position there is more of the same. It is, again, rooted in realpolitik and it is, again, about the systemic, about process. In practical terms, I don’t think anyone should waste time standing in the way of the rationalized use of marijuana. No point in that at all. But I expressed my disenchantment with the marjiuana initiatives as being indicative of, again, Americans being unwilling to accept Mr. Mooney’s essential premise, that white, middle-class and affluent Americans never want to believe that anyone ought to ring them up in the middle of the night. And in the case of marijuana normalization, I fear that the country will walk away in easy self-congratulation from the wrong barricade and never actually man the right one — the one that matters. We aren’t the jailingest country on the face of the Earth because of marijuana laws, and we haven’t morphed drug prohibition into an open war on our poor because of marijuana only.
“”The last thing I want to do is rationalise the easiest, the most benign end of this,” I said in the U.K. ”The whole concept needs to be changed, the debate reframed. I want the thing to fall as one complete edifice. If they manage to let a few white middle-class people off the hook, that’s very dangerous. If they can find a way for white kids in middle-class suburbia to get high without them going to jail,” he continued, “and getting them to think that what they do is a million miles away from black kids taking crack, that is what politicians would do.”
It’s not that black and brown kids don’t also smoke weed, or that there isn’t a pharmacological difference between marijuana and cocaine, or there isn’t a fundamental benefit to rationalizing the easiest, safest and most popular part of the American drug culture. It’s that in doing so, the same government that gave us this war, and ratcheted up this war to persecute and monetize its own poor, will have let the air out of the balloon of national dissent. Once marijuana is exempted from the war on drugs, I argued, “it’d be another 10 or 40 years of assigning people of colour to this dystopia.”
Same thing here. Knowing what I know about how tolerant we are in America about allowing those without political capital — our poor, our minorities, our most vulnerable citizens — to shoulder the full weight of our security and crime suppression costs, I pay attention when people suddenly — upon being asked to endure the most modest inclusion of their personal information in a data base to be used for a collective and legal purpose — suddenly begin to declare that it is un-American for such a thing to be attempted, regardless of the goal.
If Mr. Maciej wants to look at the civil rights implications of the war on terror, and address — not merely the programs that might intrude in ways that he finds unnerving or untenable — but instead focus on process, then I am interested in enlistment. If this is about oversight and accountability and reshaping the shadow government of the FISA court, I’m in. If it’s about establishing clear, definitive laws for how the inevitable waves of new technology are to be employed, and having a real discussion about what law enforcement goals and security concerns justify what level of programming, I’m committed. And it’s about all of us kicking in, and admitting that at points, citizenship requires shared risk and shared sacrifice, and if it promsises a compact between all of us, and rules that equate for the country as a whole, then I understand and agree with the fight.
But when you rush your hyperbole forward only for those intrusions that unnerve you, or impose on you in even the most delicate and theoretical ways, yet move beyond that to can conjure totalitarian end-game scenarios for the future — and all the whiel governmental overreach is the given terrain for whole tracts of another America, well, okay. Fight where you want to fight. Fight for what matters to you. But me, it feels hollow to the premise of any American collective or society, and any ideal that we claim. Draped in the language of liberty as you are, you are about yourself only. You might as well light that now-legal joint and walk away. Mr. Mooney had your number a long time ago.
* * *