There’s no problem whatsoever with the U.K.’s Guardian reporting the leaked Verizon court order, engaging with Mr. Snowden, and publishing the known details about that NSA program, as well as PRISM. It is not in committing an act of premeditated journalism that such an august publication entered the realm of self-aggrandizing hyperbole. The journalism is the job. It was in the additional editorializing of the lead reporter in telling us exactly how “indiscriminate” the NSA program was. Such characterization jumps past the known into the argumentative, and actually undercuts the fundamental journalism. The NSA program involves a great amount of phone data, but it has by no means been proven indiscriminate.
And while we have, leaked to us, the court order signed by a federal judge authorizing a re-up of that ongoing program, what we have not seen thus far is the affidavits of the counter-terrorism investigators explaining exactly the goals and uses of that phone data, or the proscribed methodology in which it was to be used or not used. We do not know how discriminating the actual program actually is. Judging from the public comments from NSA officials thus far, there is an argument that the use of this data, as authorized by the judge, is limited to a specific national security function.
So I have said as much. And in doing so, and knowing that I had left something unpleasant in the punch bowl at the Guardian‘s party, I sat back to wait for the inevitable. It arrives today in the form of an essay by a gentleman by the name of Shirky — the name is almost Dickensian, given the ensuing performance — who tells me how wrong I am about things. Remarkably, he does so by rounding my positions into something less or something more than they actually are. It is actually quite astonishing.
Mr. Shirky: “Simon imagines that NSA capabilities can be guessed at by extrapoliting from the capabilities of the Baltimore police force in the 1980s. They can’t.”
Actually, Simon did exactly nothing of the sort. That would be a silly thing for anyone to attempt, and to no apparent purpose. No, Simon only used an analogy of a Baltimore wiretap case to show that the acquisition of phone metadata — even from phones that will yield data from thousands of innocent citizens — has been deemed constitutionally legal for decades now. The example was about legal precedent and the status of metadata before and after 9-11. The example had nothing whatsoever to do with NSA capabilities. It exists instead to point out that the legal basis for the NSA program is not unique to national security issues or to the war on terror, but has its legal origins in decades of ordinary law enforcement.
Mr. Shirky: “Simon’s last year as a working reporter was 1995; what else has changed since he got out of the journalism racket? First computational power….so how many ‘computer runs’ can the NSA do, asks Simon…the NSA has at a conversative guess, a trillion times more computing power than the Baltimore police…”
Ah yes, the rush to ad hominem. Simon can’t understand what computers can do, ergo he has no place to opine. Except, that’s not really of issue in anything I posted either. From Simon: ”The scale is extraordinary; it’s global. But of course, these are proactive investigations into global terror and technological capabilities now make such investigative efforts possible. And still, regardless of scale, the ethical and legal argument is the same…”
It’s apparent that I am entirely aware of the extraordinary computing power of the NSA. Indeed, it is in this brave new world of supercomputing that any investigator could have the slightest hope of, say, obtaining a terror suspect’s mobile phone number and, with a data base of the entire U.S. call history intact, run that number and acquire actual connections to potential co-conspirators, and even have a shot at a real-time contact or two before the cell phone was dumped and the number lost. That is indeed astonishing. Obviously, as I acknowledged throughout everything I’ve written, the capacity for such a model as a proactive anti-terror tool is significant, just as the capacity for misuse of such data is significant.
And in asking how many computer runs NSA can do, here is the full phrase in my essay: ”…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?”
Obviously, I am not walking away from my initial acknowledgment of the NSA’s computing power, or even merely calculating computing time or capacity. No, I am asking a much larger question about the human resources involved in doing the resulting police work — just in case anyone thinks that the FBI and NSA is maintaining this data base in order to fish about for fresh domestic targets. The computer run is the fast part; assessing the data, analyzing it and then investigating it involves most of the man-hours. Using the data for purposes of investigation — whether a proper investigation, or one predicated on the violation of civil rights — is what takes time. It uses more than technological capability, but the time and bodies of a finite number of counter-terror investigators and other human assets. And in saying so, I’m not oblivious to technology, I’m asking readers to consider rationally the probability of these agencies being used to fish for domestic targets using this particular data base. After all, if they want to target someone domestically, the FBI can lay hands on the same metadata without jeopardizing this unique counter-terror program; as we said earlier, this stuff hasn’t been subject to Fourth Amendment requirements of a warrant in decades. It’s there for the taking, with or without this program.
It’s no wonder that Mr. Shirky would ignore the manpower portion of my statement, given that his required purpose is apparently to carve from my actual person an ink-stained anachronism of a old-fart reporter who doesn’t understand that the NSA has vast and powerful computers, when indeed, my argument is simply that the human resources for American intelligence and countert-terror are not infinite. And every computer run generates workload.
Indeed, for a very precise argument about the specific purpose and utilization of this data base — and also the likely arguments that investigators offered to the FISA court as to the need to create the national data base of phone metadata in advance of individual subpeonas for information — refer to the following, previous post:
I’m willing to venture that even from the technological dinosaur as I am supposed to be, there is, in that post, more detail and specifics about the real-time interactions of the data in terms of counter-terrorism than has yet been addressed in Mr. Shirky’s essaying, or in a good deal of the mainstream coverage as a whole. The argument here isn’t a function of anyone being dumbfounded by fresh technology or computer capacity. No, the new potentialities and risks of extraordinary technological capacity is the given in this debate. Instead, the core issue of contention here is firmly rooted in conflict between the actual needs of real-time, proactive counter-terror and legitimate constitutional concerns about privacy and telephonic communications. And into that, Mr. Shirky dips not a blessed toe, except to chronicle and depict the possibilities for misuse. The actual viability of the tool, and the practical and justifiable real-time uses that might convince all three branches of American government to approve such a project — that can’t be mentioned. In a debate in which individual liberty and collective responsibility, personal privacy and national security are in necessary conflict, let’s address liberty and privacy only.
Mr. Shirky, again: ”Simon construes constitutional protection from government intrusion as controls against human listening in on phone calls or reading messages. But much of the new data created is metadata – data about people and their communication patterns – and metadata alone is often enough to create a real breach of privacy.”
Jesus, man. Simon doesn’t construe a damn thing. The U.S. Supreme Court does. Simon: “And in the Baltimore case, and in many other cases before and after it, the working logic was that the U.S. Supreme Court had ruled that there is no expectation of privacy for phone caller data — what numbers you called, when you called them, from where, and for what duration. Because contractually, you as the phone user share this data with your phone carrier — a third party — the expectation of privacy has long been held to be minimal and has since Jimmy Carter was president.”
That’s U.S. law for the last thirty years, a series of legal precedents that have zero to do with the war on terror or national security, that originate in ordinary law enforcement and remain intact for application in NSA’s FISA affidavit. The constitutional controls are protection against the most invasive electronic intercepts, which are indeed those that allow the government to acquire content. But throughout everything else published on this, Simon hasn’t suggested for a moment that metadata is without investigative value, or that its acquisition isn’t a lesser, yet relevant intrusion on privacy. Of course it is; why else would an investigator ever seek phone records or use a DNR otherwise? And that’s why the release of such requires at least a court order. Since when is my pointing out that some content is more invasive and therefore more subject to constitutional protection an implication that law enforcement can’t learn things from metadata? But again, if they want those records, they’ve got them easily enough, and through the usual channels. The FBI does not need this data base to target anyone domestically and obtain, use or misuse phone data. Those court orders aren’t wiretap warrants, compared to which they damn near write themselves.
Mr. Shirky, for the final time: “Simon’s argument that we should trust the NSA to respect American’s privacy without much in the way of public oversight may carry the day…but he is wrong to suggest – and no one on any side of the debate should believe – that the NSA’s powers are anything less than extraordinary.
Strike four. I did not say “we should trust the NSA to respect American’s (sic) privacy without much in the way of public oversight.”
I said pretty much the opposite. And I have been saying so repeatedly in all forums. My argument, however, goes not to the belief that the viable, legitimate uses for this technology can be eschewed by society, or even that misuse is not likely to occur at points. Every law enforcement asset is subject to use and misuse. No, my argument goes directly to the corruption of process in the FISA establishment’s overwhelming secrecy. Repeatedly, I write that the FISA process needs to be opened up, and subjected to independent and aggressive oversight.
Simon: ”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.”
And then, in yesterday’s post, I actually got detailed and even a bit prescriptive: ”This is where this current controversy can allow us to take a legitimate stand to protect our privacy. In fact, I think the overwhelming secrecy of the FISA process is untenable and damaging to law enforcement’s own case… secrecy at this level is inevitably going to lead to the misuse of any law enforcement asset. The FISA process needs to be opened up; that’s the real reform here. Not denying ourselves our own technology for an actual societal goal, but creating a framework to prevent the misuse of that technology.”
“There needs to be some independent review, some independent oversight of the FISA court, while at the same time maintaining the secrecy for national security purposes. Just spit-balling, but how about a FISA review panel comprised of law school deans, some civil liberties advocates, a couple former U.S. senators, etc. All of the them carefully vetted for national security clearance. Give an independent panel the charge of reviewing all of the FISA rulings and proceedings and issuing a periodic report to the intelligence committees and the White House. The cover sheet of that report, without referencing specific casework or national security programming, provides an overall assessment of FISA performance with regard to civil liberties and privacy issues…now, at least, independent eyes are on the process and there is, in effect, a report card that all those law school deans and civil rights attorneys will stand behind if the shit hits the fan.”
Surely, from all of the above, it’s gross mischaracterization to say Simon’s arguing “we should trust” the NSA. Not after all that.
So there you have it. That’s every single reference to me or my alleged arguments in Mr. Shirky’s brief essay. There isn’t one I omitted, meaning every single time this fellow brought me up, he either mangled or balkanized or obscured my actual language and/or intent.
Listen, there’s a lot of important stuff to debate and discuss here, and again, while I believe Mr. Snowdon has done some uncertain amount of damage to meaningful counter-terror assets, it is clear, too, that he has created a window in which important debate can now and should now occur. But not if we give ourselves over, as Mr. Shirky has apparently given himself over, to manufacturing opponents that we can more easily vanquish. There are real and substantive arguments that those on all sides of this debate need to confront. I don’t know if this gentleman is capable of doing better, but I know that the Guardian — if it wishes to be instrumental in the serious debate on these issues, and not merely a home for whatever voices will do whatever necessary to aggrandize and magnify the actual meaning and relevance of the paper’s reporting — needs to raise its game. This was embarrassing.