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 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 fundamental: If something is a violation of 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 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 intrusion on individual privacy, or the 103,407th? I know it’s an emotional thing imagining us, all of us, and not just 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 the Supreme Court.
Again, as Mr. Mooney would declare: ”America, it’s your nigger wake-up call.”
Yes, I’m going there. 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 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 use a string of North Avenue payphones, because they 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, 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 legal affront to privacy and civil liberties, it is the same for tens of thousands as for tens of millions. In fact, there is legal logic that suggests, credibly, that by including the phone data of all Americans in the NSA datapile, the 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 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 contention that the Baltimore case obtained the phone data from 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 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 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 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 a tower. Now, again, we are looking at a pair of apples.
As to the argument that it is the NSA alone that is responsible for this program, 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 enforcement, and that will maintain 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 cooperation. And, hey, even more practically, if you think the government is going to fund the FBI to the tune of redundantly building that agency 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; 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 domestic law enforcement, investigating whatever intelligence is gleaned from the datapile. It’s still the FBI and other domestic agencies, as it ever was.
Strangely, to my reading of his essay, Mr. Maciej doesn’t actually directly reference the major legal difference between the methodology of the Baltimore cases and the NSA program. It’s this: Both 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 calls — 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 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. Remember, the goal here is proactive counter-terror work; time matters. And I’m guessing 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, a suspect phone has gone dead. Exigent circumstances is the legal argument, and I’m also guessing that specific phrase is 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. Maciej 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:
Mr. Maciej asserts that this NSA 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 a secret court cannot provide sufficient public oversight of its rulings or treatment of defendants, or even address properly and aggressively any purposeful affronts to privacy and civil liberties. I, too, believe this is exactly the case.
Finally, an apple meets an orange worthy of note. And of course, it is here where those who worry about the systemic risks of this kind of surveillance, and the potential for authoritarian abuse, might argue for change. This is 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. 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, and a system that is capable of measuring the potentials and risks and then writing, keeping and enforcing the rulebook is the fundamental here. And yet the scare-tactics that accompany this NSA leak are enough to turn potential allies into cynics and take eyes off the legitimate and essential prize.
Being a technologist, Mr. Maciej’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 now. 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. Still, we continue to allow 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 issued a blanket prohibition against the use of a proven, scientifically-sound technology or law enforcement asset because of its possibilities for misuse. There’s no precedent for such. The entire 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 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 arrestees for purposes of maintaining a DNA data base. 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 analysts around the country who wrongly manipulated the science 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 a near-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 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. 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 have neither a clue nor a chance in hell.
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The question I keep asking is why this datapile?
Again, if the government wishes to target political dissidents, or critics of a given program or policy, or members of an ethnic or religious minority — they can obtain all of the phone metadata on those targets through ordinary domestic channels. They don’t need 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. Nixonian overreach begat the Church Commission, after all. And 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 can go to any run-of-the-mill U.S. District Court judge to get the court order and never think even once about the Utah program.
I understand that the fears of Mr. Maciej and others are rooted in the global aspect of the metadata pile over in Utah, and in the power of the NSA’s computing. 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: 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 domestic authorities — using the existing databases of airlines in concert with their own — 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? 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 phones to find 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.
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 atop 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 process of harrassing and abusing another citizen requires actual manhours and actual decisions about how to prioritize those 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: ”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 in Utah has its court-ordered origins five years later, in 2006. The Kafkaesque excesses of the no-fly list and similar government overreach will be with us 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. And, given the secrecy of the FISA process, all of it still goes on in the dark, regardless.
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, are 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, and whose sole purpose in the process is to address those ideals. There needs to a congressional review process that can access the investigative documentation and arguments contained in affidavits for all FISA programming and investigative ventures, just as all decisions of the court need to be available to 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 where the barricade ought to be. This is the fight to have.
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, real oversight is required 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, or his claims to “welcome a debate” about data-mining, its purposes, uses and possible misuses, fall flat because they are, indeed, two-dimensional. In a void this dark and complete, no one can even know what one ought to be debating.
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Still, I can’t help but look at the actual affront to individual Americans that this datapile in Utah demands, compare it to what America routinely requires of its own underclass and working class, and marvel at our national capacity for indifference when someone else is carrying the weight.
And this, too, is why I won’t climb the barricade where Mr. Maciej thinks I ought. 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 in complete failure of its stated goals because of who it targeted — and who it did not. And at every point when ordinary, middle-class or affluent Americans are given a chance to disassociate from the struggle of others — whenever and wherever they are given a buyout from the real costs of maintaining a policy or upholding a societal value — they take the free pass and run.
Think otherwise? Take a look at 50,000 dead on the other side of the Rio Grande, an abbatoir that America quietly accepts in order to simultaneously maintain its drug prohibitions and its drug appetite. We’re so principled, we’re willing to fight our 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 21st Century policing culture of stop-and-frisk. That’s actual Americans stopped on the street and body-searched, physically, without legitimate probable cause. Amid such standards, the high whine of those who cannot bear to have their phone data sitting in a pile with 300 million fellow Americans — this can’t possibly engender my allegiance or support. Especially so, given that I regard counter-terror to be a more legitimate policy and goal than any part of our drug war. One has actually brutalized the poor, reduced our actual civil rights, and created an actual and vast American gulag. The other, I am told, might, in the future, do some of these things. Yes, thanks for the warning.
Personally, I’m glad my Verizon data is in that pile. I’m an American and I’ve been made to ante for a program that has a practical application against a certain and fixed evil. Generally a New Deal liberal, I actually believe that there is, or needs to be, an abiding social compact among Americans, as well as a lattice of individual liberties. I credit both liberty and responsibility and believe it’s actually in the necessary tension between those two ideals that great societies are built. Liberty alone guarantees personal freedom and little else of societal ambition; responsibility alone, without liberty, is tyranny. Well, 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, in fact. 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 U.S. states. By the time my answer was reduced to 140-characters or less, I had been recorded as being opposed to such normalization; it morphed into an unequivocal, and almost inexplicable position, if you know my overall arguments about drug prohibition.
And yet, my actual argument there was precise and consistent with this one. It is, again, rooted in realpolitik, and it is, again, about the systemic, about process. In practical terms, no, I don’t think anyone should stand in the way of the rationalized use of marijuana. But I expressed my disenchantment with the marjiuana initiatives as being indicative of, again, 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 early morning. 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 and the one that is putting the core values of our republic at great risk. We aren’t the jailingest country on the face of the Earth because of marijuana laws, and we haven’t turned 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 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 safest and most popular part of the American drug culture. It’s that in doing so, the same government that made this war, and ratcheted up this war to persecute and monetize its own poor, will have let the air from the balloon of national dissent. Once marijuana is fully exempted from the war on drugs, I argued, “it’d be another 10 or 40 years of assigning people of color 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 other folks — 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 declare that it is un-American for such a thing to be attempted, regardless of the goal.
If Mr. Maciej wants to address not merely the programs that intrude in ways that he finds unnerving or untenable, but instead focus on process and system, then I can be enlisted. 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 intrusion, I’m committed. And if it’s about all of us kicking in, and admitting that citizenship requires shared risk and shared sacrifice — if it promises 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 drawing the line here, with this datapile and this program, feels hollow and dishonest and self-defeating. Fight where you wanna, but if it’s here, over this? You might as well light that now-legal joint and walk away. Mr. Mooney had your number a long time ago.
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