Policy & Law Politics

NSA and FISA commentary: Calling it.

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?



  • Hi David- I’m curious to see if you read/saw the WSJ article about all American citizens’ credit card transactions being captured as well. I’ll post a link below if you’re interested (as you can imagine it’s been tough for me to see if anyone else posted this link or made the following argument b/c of the volume of responses).

    I’m posting b/c it seems to me that you feel our reaction is hysterical b/c we assume that PRISM is a sign that a dystopian Big Brother future is nigh, and that’s absurd. However, isn’t it pollyanna of you to assume that phone records are where those who desire to be all-seeing and all-knowing would stop?

    They’re already collecting all cc info. Would it be hysterical for citizens to freak out about that? What happens when they reveal the NSA is also banking all of our medical info? Book and movie purchases, to search for subversives? Do you believe this isn’t happening, or couldn’t happen?

    Here’s the link if you’re interested:

    • Read that.

      For the four hundredth time, it seems, PRISM and the phone data are separate tracks. My argument against the hysteria on the phone metadata and its relevant use as a counter-terror tool — and the fact that the data is eminently available to the government domestically, without this NSA program, if they want to target American dissent or otherwise violate civil liberties — is one thing.

      If the NSA is using PRISM domestically against Americans, then it is unconstitutional. Or if the Patriot Act has made it otherwise, it is dead wrong.

      I have worries about the future of PRISM, and also the lack of legal protection on internet data. And the NSA should be proscribed to using its computing power to track overseas calls into the American phone database, and not compiling on Americans. The Journal story needs to be confirmed. If it is — that Americans are being dossied domestically — that is a new kettle of fish. And it is not — not — the subject of my critique of the Guardian’s coverage and hype of the phone metadata issue. That was, again, bullshit.

      This bears watching and has my interest. Is PRISM being used domestically? That would be a big deal. To me and every sensate person I would think.

      Tellingly, most Americans are okay with the use of the phone data by NSA in polls. Most are against the government reading emails. PRISM and the phone datapile are different programs. Though I know there are many who conflate the two.

    • Well, given the ratings of my television shows, I might soon be out of job. Of course, there isn’t a security clearance in the world that they give me after reading even half of the shit I write. Back to the rewrite desk, maybe.

      You weren’t serious, right?

  • I always look forward to having a site down message greet me when visiting this site. it always ensures a feast of food for thought awaits me when it finally gets back up, and reading your article and the accompanying comments the other day did not leave me disappointed.

    On a related note, I’d love to hear your thoughts on this current craze of whistleblowing we seem to be experiencing, perhaps in a future post sometime. Pretty much every one of your shows includes a journalist whose truth-seeking in the face of a non-shit-giving oligarchy is held up as one of the few genuinely noble acts we can expect beyond fiction. Does this opinion extend to the Snowdens and Mannings of the world too?

  • David, thanks so much for sticking your neck out on this issue. Internet political chatter, especially on social networks, rarely rises above the infantile, with the most predictable, knee-jerk, sanctimonious and utterly witless comments about the villain de jour (Obama, Monsanto, fracking, etc.). I hope you haven’t regretted doing so.

    By the way, I like the way you slipped an oblique Richard Thompson allusion into the essay. Don’t know if anyone else has picked up on that (I don’t have the patience to read through all the comments) (hint: it’s the line about cake). Big fan of your work from The Wire to Treme!

  • David,

    I write, as I stumbled on this blog from Andrew Sullivan’s, and can’t quite credit that the level of commentary here is as high as it is. Well done for fostering that. Also, The Wire rules, and is still, to my mind, with the Sopranos, the ne plus ultra of narrative TV work.

    I wonder if you’ve had time to read Ron Deibert’s recent book, Black Code, which describes but doesn’t necessarily focus on the fact that the metadata cat is out of the bag–and yes Google, Facebook, a host of other giant and smaller corps., government security agencies, not to mention some rather more nefarious actors like Koobface, are actively mining that data–as it largely can’t be helped. Instead, he suggests we have to start actively thinking about and pressing for a well thought out policy framework to place around that data, and what use it is put to. The argument is a profoundly political one; we need to actively engage in it now in order to prevent a further slide into scarily concentrated power that will further undermine our apparently fragile, liberal democratic freedoms.

  • Any chance of getting you, Ta Nehisi Coates and Andrew Sullivan in a room with some beers and an Orioles game in the background (you and Coates being Baltimore linked) and having a go at this. That would be great to listen to.

    • I am an admirer and reader of both those gentlemen. Especially Mr. Coates. Don’t always agree with either, but anyone who always agrees with me isn’t going to be much fun at a party, either.

  • I appreciate that you’ve accepted an altered, but much more nuanced version of your original argument and also that you’ve continued to focus on the leak and not the leaker (who, despite what the media says, is basically irrelevant until the US takes some sort of action against him — and even so, that’s another story all to itself). As American viewers are wont to do, they became enamored with the person, not the act, and this sideshow has basically brought intelligent debate to a standstill.

    The US got a freebie when the guy decided to out himself as the leaker. A majority of news sites and programs were already focused on the wrong things (and there are still “reputable” outlets treating this as if the government was listening in on every call you make), but now that another variable is thrown into the mix, there’s very few people still talking about what’s important in this whole mess. Then, after another news cycle, it’ll be old news.

    And really, who cares about a continued breach of privacy that we found out about over a week ago? The common refrain, “It’s been happening forever – why are you so mad now?” (the first half of which was even promoted on this blog, though you were making a slightly different point about data collection) will just intensify in the following weeks, and nothing will have changed.

    Thank you for encouraging honest, thoughtful debate and embracing, if not agreeing with, the varied opinions of others, which ran the gamut from like-minded to mindful disagreement to mindlessness. This blog is consistently packed with thoughtful comments, and even if the commenters are behaving because they want to engage and discuss current events with an artist whose work moved them or changed their points of view, the level of tact and respect here is unlike most places on the Internet.

    I’d say Kudos to you, but since you’re a newsman, it’s no surprise that your editorials and comment replies are compelling. It’s just amazing that we, the Internet, could keep up. Just take a trip to the comments section on YouTube or Yahoo (especially on videos/articles about PRISM, if we want to stay topical here) — they are filled with some of the most vile thoughts you’ll find outside of a ricin-tainted letter.

    Here’s hoping that you continue this trend and treat future major stories that same way on the blog. The personal stories are great and always enjoyable, but it’s pieces like “We are shocked, shocked” that elevate this blog to a level of discourse that’s almost impossible to find on the Internet. So thanks, David. It definitely helped me to ignore my work responsibilities for a good hour last Friday, and that in itself is a gift.

    • Please attend to the bolded note. I have not altered my original essay. Nor have I suggested that there isn’t equal legitimacy in a harvesting of the internet as a national-security tool. I have, specifically, acknowledged that right now the U.S. legal protections for personal communication on the web is not the equal of that accorded telephonic communication. I agree with those who pointed out that when you grab stuff from the internet, you get not metadata, but the content. And that excepting for posts on public sites, which are of course in the public domain, there should be a corresponding level of legal standard to meet with e-communication.

      This distinction is relevant and I became convinced once the discussion migrated from telephonic data to PRISM, the revelations about which were a day later than my original post. And yes, the discussion helped clarify all of that. The discussion was good. It was grown-ups arguing, for the most part. I can’t spare the time to do it too often, but it’s my hope that doing it now and again will bring some folks here for expansive discussion and debate.


      • I actually posted my reply before your bolded note appeared, so my apologies for not having seen it. That said, I didn’t mean to imply that you changed your entire opinion or the content of your initial post, just that you adapted to new information you were presented and evolved your argument to incorporate information that wasn’t available initially.

        In light of your post’s addendum, I can see how the first sentence of my comment could be construed as such, after you had taken what appears to be an unfair pummeling on Twitter (I am not an active Twitter user, so I’ve been unaware of any hubbub). I think that the backlash to this post caused you to interpret my opening line in a way I hadn’t thought it would be interpreted.

        As a journalist, I’m sure you take claims of “flip-flopping” and retraction very seriously, so I do apologize for my poor word choice that made you think I was furthering these claims.

        Thank you for replying and for being so cordial, though, despite the miscommunication on my end.

        • Understood. I contextualized your comment in a way you didn’t at all intend.

          To try to say anything that has any duality or nuance at all in this world — as most things do — and then see what people can make of it in the briefest medium is consistently wearying. Twitter has a purpose, I know. A meaningful one. But that purpose doesn’t involve logic or even rhetoric. And yet people pretend it is a viable forum for substantive debate.

          Just today, an otherwise cogent writer for the Atlantic attempted to dismiss the Baltimore analogy in my post by asking — I kid you not — what the efficacy of that successful prosecution was with regard to the overall success of the drug war. As if the legal analogy would not be the same if they were investigating anything from widgets to gambling to genocide.

          But hey, he did it in 140 characters so, clever is as clever does.

  • David, you’ve given a very good counterpoint to the narrative. I’m English so the Guardian has dominated the perceptions here. I’ve given up reading on it now until the storm has died down but your post gave food for thought. I wasn’t going to make my first post there because I anticipated you might have a bloodbath on your hands. Didn’t turn out too badly, I’m still going through it. Well done to most.

  • This is becoming the first site I look at for comment on and discussion of news stories. Thanks for enabling and engaging in such a high level of debate: one of the only places I feel the internet moves towards achieving its potential.

  • Thanks for this David – you’ve helped give much-needed perspective and level-headedness to an issue which has been grossly sensationalised in much of the media.

  • DS, Webmistress – Check out cloudflare.com to help prevent the site from getting overloaded. And there are other things you can do to harden wordpress to traffic surges. Thank you for the insightful commentary. Long may it live. 🙂

  • Thanks for your thoughts and analysis David. The internet especially and the media in general needs more thoughtful, rational discussion and analysis. We are all very busy and want our thoughts and beliefs to be validated, so it is much easier to just swallow the headlines we are already fed from outlets from whom we know what we are going to get. I tell people daily they need to read multiple sources before making a decision on what they believe to be true and do a little legwork before claiming they are absolutely right and the opposition is absolutely wrong. We get so little genuine, unbiased analysis. Even opinion pieces and essays are often disingenuous as the authors are more concerned with pushing this agenda or that. Your initial essay and follow up is the type of debate we need and just as importantly it shows a willingness to listen, which so few people actually do. Thanks.


    • Verizon? What about Google, Apple, Facebook, Yahoo, etc etc.
      For the record you are amazingly snarky and pretentious.
      Do you require alcohol or pills to sleep at night?
      Good luck I hope you find happiness someday.

      • To sleep, I require an 8-ball of cocaine, a half-dozen underaged hookers and side two of the Lou Reed live album blaring from speakers strategically placed at each corner of the bed. I hope that you, too, find such happiness someday. I say so online only because the NRA is fully aware of the above from the intercepts on my Verizon phones.

        You’re a little too angry for this website right now. Try to get hold of yourself.

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