Some nice folk hoping to help craft a better future for my alma mater, The Baltimore Sun, stopped by the office a few weeks ago and asked me some questions about what I thought about the Koch brothers, those politically passioned gentlemen, purchasing the half-empty husks of what remains of the Chicago Tribune newspapers.
Archive for category: Politics
Okay, folks, I want to thank everyone, sincerely, for engaging in what has been for the most part an aggressive, sincere and genuinely relevant discussion of the Verizon data controversy. At points, I looked around and thought that the debate at this little corner of the web was far more specific and rooted than much of what occupied the op-eds and 24-hour cable channels. You all brought a lot into the mix. And with rare exception, everyone stayed largely on substance and avoided ad hominem and other rank fallacy.
For my part, I remain convinced that the Verizon call data should be used as a viable data base for counter-terror investigations and that its misuse should be greeted with the hyperbole that currently adorns the present moment. On the other hand, the arguments of others convinced me that while I still believe the differences between call data and a wiretap are profound, and that the standard for obtaining call data has been and should remain far more modest for law enforcement, the same basic privacy protections don’t yet exist for internet communication. There, the very nature of the communication means that once it is harvested, the content itself is obtained. And the law has few of the protections accorded telephonic communication, and so privacy and civil liberties are, at this moment in time, more vulnerable to legal governmental overreach. That’s a legislative matter, but it needs to be addressed. In this day and age, e-communication between individuals, if not public posts on public sites, should have the same measure of legal protection as telephonic communication. So that has shifted for me. This is not to say, of course, that I believe there aren’t legitimate and plausible reasons for law enforcement to sift the internet, or that a PRISM-like monitoring of the internet doesn’t have relevant counter-terror value. But that the acquistion of interpersonal communications involving U.S. citizens and domestic internet traffic — and note that PRISM is currently aimed at overseas data only, according to the revelations about its legal underpinnings — should be subject to legal prerequisites comparable to telephonic surveillance. Thanks to those who made clear that PRISM and the telephone call data harvesting are proceeding under different standards. +++ (See note below.)
Which, for me, is the point. A good, specific and focused argument makes everyone think better. Unless it pisses everyone off. One of the two.
But now I’m gonna call it. This got bigger and longer than reasonable and, indeed, the amount of traffic actually took down the site several times, so that it seems I will need to be changing my digital homeroom in the future. Anyway, what’s left of the weekend beckons all of us. My purpose in engaging on particular topics is to make this small site a focal point for serious debate. If you took anything personally, you might want to reconsider this underlying purpose and rest easier. Unless it was a rare moment when I genuinely meant something personal, usually in response to something comparable. In which case, go fuck yourself.
In any event, thanks for everyone’s contributions and passion. Especially that one fella with the last name Simon who found my analogy to the Baltimore pay phone DNRs to be in his words, “shaky.” We will agree to disagree, but goddamit, kiddo, what am I paying college tuition for if you’re not going to follow me in rhetorical and philsophical lockstep? For real, when you don’t carry your own kid, you know you have an argument on your hands.
The best to all who played here.
+++ You know, it is astonishing how genuinely foolish much of the world becomes when nuanced discussion is reduced to 140-character morsels. Since posting this polite thank you to those who engaged in a long and detailed debate, I have been made aware that this paragraph has been cited repeatedly on twitter as evidence of my having reconsidered the argument of my original post.
For real, folks, the level of non-cognition required to make such a mistake requires either 1) the attention span of a small, nervous rodent or 2) an overwhelming desire to dismiss an opponent’s arguments at the first, vague opportunity. It’s a little ridiculous that I have to create this addendum to declare that nothing in the aforementioned paragraph contradicts anything in the original essay, which dealt with the Verizon telephonic intercepts. News accounts regarding PRISM were published after I posted the original essay. Second, the paragraph makes clear that I am not adverse to the idea of PRISM as a comparable capture of internet metadata and public-post content under the same legal privacy standards that currently apply to telephonic communication. I see a viable national-security purpose in the collection of internet data as well. However, thirdly, I recognize that currently, U.S. law has not yet accorded personal internet communications the same protections as telephonic content, and therefore I am not averse to seeing the legal level of privacy for emails and such raised in a corresponding fashion. And it was a result of the continuing discussion on this site and the contributions of others here that I came to fully recognize and speak to that distinction.
If, reading the above, you still rush to Twitter to declare that Simon, newly christened as a crypto-fascist and/or naive surveillance state apologist, has now retracted his original argument, you are either very dense, or very dishonest. A serious question: Is the increasing brevity of communication on the internet making us less intellectually capable, or at the least, less attentive to substance?
Is it just me or does the entire news media — as well as all the agitators and self-righteous bloviators on both sides of the aisle — not understand even the rudiments of electronic intercepts and the manner in which law enforcement actually uses such intercepts? It would seem so.
Because the national eruption over the rather inevitable and understandable collection of all raw data involving telephonic and internet traffic by Americans would suggest that much of our political commentariat, many of our news gatherers and a lot of average folk are entirely without a clue.
You would think that the government was listening in to the secrets of 200 million Americans from the reaction and the hyperbole being tossed about. And you would think that rather than a legal court order which is an inevitable consequence of legislation that we drafted and passed, something illegal had been discovered to the government’s shame.
Nope. Nothing of the kind. Though apparently, the U.K.’s Guardian, which broke this faux-scandal, is unrelenting in its desire to scale the heights of self-congratulatory hyperbole. Consider this from Glenn Greenwald, the author of the piece: “What this court order does that makes it so striking is that it’s not directed at any individual…it’s collecting the phone records of every single customer of Verizon business and finding out every single call they’ve made…it’s indiscriminate and it’s sweeping.”
Having labored as a police reporter in the days before the Patriot Act, I can assure all there has always been a stage before the wiretap, a preliminary process involving the capture, retention and analysis of raw data. It has been so for decades now in this country. The only thing new here, from a legal standpoint, is the scale on which the FBI and NSA are apparently attempting to cull anti-terrorism leads from that data. But the legal and moral principles? Same old stuff.
Allow for a comparable example, dating to the early 1980s in a place called Baltimore, Maryland.
There, city detectives once began to suspect that major traffickers were using a combination of public pay phones and digital pagers to communicate their business. And they took their suspicions to a judge and obtained court orders — not to monitor any particular suspect, but to instead cull the dialed numbers from the thousands and thousands of calls made to and from certain city pay phones.
Think about it. There is certainly a public expectation of privacy when you pick up a pay phone on the streets of Baltimore, is there not? And certainly, the detectives knew that many, many Baltimoreans were using those pay phones for legitimate telephonic communication. Yet, a city judge had no problem allowing them to place dialed-number recorders on as many pay phones as they felt the need to monitor, knowing that every single number dialed to or from those phones would be captured. So authorized, detectives gleaned the numbers of digital pagers and they began monitoring the incoming digitized numbers on those pagers — even though they had yet to learn to whom those pagers belonged. The judges were okay with that, too, and signed another order allowing the suspect pagers to be “cloned” by detectives, even though in some cases the suspect in possession of the pager was not yet positively identified.
All of that — even in the less fevered, pre-Patriot Act days of yore — was entirely legal. Why?
Because they aren’t listening to the calls.
It’s at that point, people, that law enforcement requires a full-throated argument of probable cause. It’s at that point that privacy rights must be seriously measured against the legitimate investigate needs of law enforcement. And it’s at that point that the potential for authoritarian overreach becomes significant.
I know it’s big and scary that the government wants a data base of all phone calls. And it’s scary that they’re paying attention to the internet. And it’s scary that your cell phones have GPS installed. And it’s scary, too, that the little box that lets you go through the short toll lane on I-95 lets someone, somewhere know that you are on the move. Privacy is in decline around the world, largely because technology and big data have matured to the point where it is easy to create a net that monitors many daily interactions. Sometimes the data is valuable for commerce — witness those facebook ads for Italian shoes that my wife must endure — and sometimes for law enforcement and national security. But be honest, most of us are grudging participants in this dynamic. We want the cell phones. We like the internet. We don’t want to sit in the slow lane at the Harbor Tunnel toll plaza.
The question is not should the resulting data exist. It does. And it forever will, to a greater and greater extent. And therefore, the present-day question can’t seriously be this: Should law enforcement in the legitimate pursuit of criminal activity pretend that such data does not exist. The question is more fundamental: Is government accessing the data for the legitimate public safety needs of the society, or are they accessing it in ways that abuse individual liberties and violate personal privacy — and in a manner that is unsupervised.
And to that, the Guardian and those who are wailing jeremiads about this pretend-discovery of U.S. big data collection are noticeably silent. We don’t know of any actual abuse. No known illegal wiretaps, no indications of FISA-court approved intercepts of innocent Americans that occurred because weak probable cause was acceptable. Mark you, that stuff may be happening. As happens the case with all law enforcement capability, it will certainly happen at some point, if it hasn’t already. Any data asset that can be properly and legally invoked, can also be misused — particularly without careful oversight. But that of course has always been the case with electronic surveillance of any kind.
Keep in mind that the FISA court was created as a means of having some definitive oversight into a world that previously had been entirely unregulated, and wiretapping abuses by the U.S. executive branch and by law enforcement agencies were in fact the raison d’etre for the creation of FISA and a federal panel of judges to review national security requests for electronic surveillance. Is it perfect? Of course not. Is it problematic that the court’s rulings are not public? Surely.
But the fact remains that for at least the last two presidential administrations, this kind of data collection has been a baseline logic of an American anti-terrorism effort that is effectively asked to find the needles before they are planted into haystacks, to prevent even such modest, grass-rooted conspiracies as the Boston Marathon Bombing before they occur.
So think for a minute about a scenario in which, say, a phone number is identified overseas as being linked to terror activity. It is so identified by, say, NSA overseas intercepts or through intelligence gathering by the CIA or the military. And say that there exists a database of billions and billions of telephonic contacts in the United States over a period of months or years. And say a computer could then run the suspect number through that data base and determine a pattern of communication between that overseas phone and several individuals in New York, or Boston, or Detroit. Would you want that connection to be made and made quickly? Or do you want to leave law enforcement to begin trying to acquire the call history on that initial phone from overseas carriers who may or may not maintain detailed retroactive call data or be unwilling to even provide that data fully to American law enforcement or do so without revealing the investigative effort to the targets themselves?
Keep in mind that law enforcement must still establish probable cause to then begin to actually monitor conversations on the domestic numbers, and that this request for electronic surveillance is then, of course, subject to judicial review by the FISA court.
Yes, I can hear the panicked libertarians and liberals and Obama-haters wailing in rare unison: But what about all the innocent Americans caught up in this voracious, overreaching dragnet? To which the answer is obvious if you think about the scale of this: What dragnet?
Your son’s devotional calls to 1-900-BEATOFF? Your daughter’s call from the STD clinic? Your brother-in-law calling you from his office at Goldman with that whispered insider-tip on that biomed stock? Is that what you’re worried about?
Take a deep breath and think:
When the government grabs the raw data from thousands of phone calls, they’re probably going to examine those calls. They’re going to look to establish a pattern of behavior to justify more investigation and ultimately, if they can, elevate their surveillance to actual monitoring of conversations. Sure enough.
When the government grabs every single fucking telephone call made from the United States over a period of months and years, it is not a prelude to monitoring anything in particular. Why not? Because that is tens of billions of phone calls and for the love of god, how many agents do you think the FBI has? How many computer-runs do you think the NSA can do — and then specifically analyze and assess each result? When the government asks for something, it is notable to wonder what they are seeking and for what purpose. When they ask for everything, it is not for specific snooping or violations of civil rights, but rather a data base that is being maintained as an investigative tool.
There are reasons to object to governmental overreach in the name of law enforcement and anti-terrorism. And it is certainly problematic that our national security apparatus demands a judicial review of our law enforcement activity behind closed doors, but again, FISA is a basic improvement on the preceding vacuum it replaced. Certainly — and I find myself in rare agreement with the Rand Pauls of the world on this one — we might be more incensed at the notion of an American executive branch firing missles at U.S. citizens and killing them without the benefit of even an in absentia legal proceeding. Or ashamed at a racially-targeted sentencing guideline that subjects rock cocaine users to seventeen times the penalty of powdered-cocaine users? Or aghast at a civil forfeiture logic that allows government to seize private property and then requires citizens to prove a negative — that it was not purchased with money from ill-gotten gains.
There is a lot of authoritarian overreach in American society, both from the drug war and the war on terror.
But those planes really did hit those buildings. And that bomb did indeed blow up at the finish line of the Boston marathon. And we really are in a continuing, low-intensity, high-risk conflict with a diffuse, committed and ideologically-motivated enemy. And for a moment, just imagine how much bloviating would be wafting across our political spectrum if, in the wake of an incident of domestic terrorism, an American president and his administration had failed to take full advantage of the existing telephonic data to do what is possible to find those needles in the haystacks. After all, we as a people, through our elected representatives, drafted and passed FISA and the Patriot Act and what has been done here, with Verizon and assuredly with other carriers, is possible under that legislation. Indeed, one Republican author of the law, who was quoted as saying he didn’t think the Patriot Act would be so used, has, in this frantic little moment of national overstatement, revealed himself to be either a political coward or an incompetent legislator. He asked for this. We asked for this. We did so because we measured the reach and possible overreach of law enforcement against the risks of terrorism and made a conscious choice.
Frankly, I’m a bit amazed that the NSA and FBI have their shit together enough to be consistently doing what they should be doing with the vast big-data stream of electronic communication. For us, now — years into this war-footing and this legal dynamic — to loudly proclaim our indignation at the maintenance of an essential and comprehensive investigative database while at the same time insisting on a proactive response to the inevitable attempts at terrorism is as childish as it is obtuse. We want cake, we want to eat it, and we want to stay skinny and never puke up a thing. Of course we do.
When the Guardian, or the Washington Post or the New York Times editorial board — which displayed an astonishing ignorance of the realities of modern electronic surveillance in its quick, shallow wade into this non-controversy — are able to cite the misuse of the data for reasons other than the interception of terrorist communication, or to show that Americans actually had their communications monitored without sufficient probable cause and judicial review and approval of that monitoring, then we will have ourselves a nice, workable scandal. It can certainly happen, and given that the tension between national security and privacy is certain and constant, it probably will happen at points. And in fairness, having the FISA courts rulings so hidden from citizen review, makes even the discovery of such misuse problematic. The internal review of that court’s rulings needs to be somehow aggressive and independent, while still preserving national security secrets. That’s very tricky.
But this? Please. This is bullshit.
In Baltimore thirty years ago, after the detectives figured out which pay phones were dialing pagers, and then did all the requisite background checks and surveillance to identify the drug suspects, they finally went to a judge and asked for a wiretap on several pay phones. The judge looked at the police work and said, okay, you can record calls off those public pay phones, but only if you have someone watching the phones to ensure that your suspects are making the calls and not ordinary citizens. And if you make a mistake and record a non-drug-involved call, you will of course “minimize” the call and cease recording.
It was at that point — and not at the earlier stage of gathering thousands and thousands of dialed numbers and times of call — that the greatest balance was sought between investigative need and privacy rights. And in Baltimore, that wiretap case was made and the defendants caught and convicted, the case upheld on appeal. Here, too, the Verizon data corresponds to the sheets and sheets of printouts of calls from the Baltimore pay phones, obtainable with a court order and without any demonstration of probable cause against any specific individual. To get that far as a law-abiding investigator, you didn’t need to know a target, only that the electronic medium is being used for telephonic communication that is both illegal and legal. It’s at the point of actually identifying specific targets and then seeking to listen to the conversations of those targets that the rubber really hits the road.
What follows is lifted from the comments to my previous post on this issue. I’m reposting it simply because as I was engaged in responding to this particular comment, I realized — even to my own surprise — how close the Petraeus imbroglio corresponds to the the tragic story of my old friend and source, John O’Neill. It’s worth posting on its own, I think.
I was on an airplane last night as the election was decided. As the plane landed after midnight on the East Coast, I confess that my hand was shaking as I turned on my phone for the news. I did not want to see dishonesty and divisiveness and raw political hackery rewarded. It is hard enough for anyone to actually address the problems, to move this country forward, to make the intransigent American ruling class yield even a yard of the past to the inevitable future. But going backwards last night would have been devastating. I read the returns in silent elation; a business trip had me traveling in business class and the gnashing of corporate teeth all around precluded a full-throated huzzah on my part. I abhor a gloat.
But the country is changing. And this may be the last election in which anyone but a fool tries to play — on a national level, at least — the cards of racial exclusion, of immigrant fear, of the patronization of women and hegemony over their bodies, of self-righteous discrimination against homosexuals. Some in the Republican party and among the teabagged fringe will continue to play such losing hands for some time to come; this shit worked well in its day and distracted many from addressing any of our essential national issues. But again, if they play that weak-ass game past this point, they are fools.