The “Nigger Wake-Up Call”

19 Jun
June 19, 2013
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Paul Mooney

The great political comedian Paul Mooney made his bones by laying in the cut between American democratic ideals and American behavior.  A mentor and inspiration to his friend Richard Pryor, Mooney’s stock-in-trade is a canny ability to thread the truth between ongoing and established hypocrisies — to make us see the pathologies that are still at the core of our decision-making and societal array.

One of his best routines involves the “nigger wake-up call,” that signal moment when the rest of America finally understands something, and comes to resent and acknowledge that which black and brown America has internalized and tolerated for generations. Well, in the wake of the revelations about data-mining — and  the sudden awareness that the government has legal cause to pay attention not just to criminally-inclined people of color and the dissolute, unreliable poor, but to us and our behavior, that there might actually be thirty to forty years of legal precedent that permits such on constitutional grounds — let’s just say the country as a whole is rising to the sound of a ringing phone.

Yesterday, I read with interest a sincere effort to convince me to join the righteous anger over the NSA’s use of phone metadata — sincere in the sense that the author, a certain Maciej, makes his best case against my defense of a specific  program by which the government would use not the wiretapping of phone conversations, but the anonymous phone call data of presumably the entire U.S. population to build a haystack large enough to hunt for a needle.  In brief, the National Security Agency obtains, by court order, the history — not the content — of all the phone calls made by Americans over a period of years, and then runs suspect numbers through that data pile, looking for connections. Only once a connection was achieved would the data cease to be anonymous and  the identity of any citizen be ascertained, and then under the same legal standard as in ordinary investigations.

The gentleman’s effort to does not restrain itself to the actual metrics or legalisms of such a program, but to the possession of such a database by the National Security Agency, and further, to a series of frightening and malevolent scenarios of a surveillance state that does not yet exist.  I’m certainly willing to stipulate that such an Orwellian outcome is plausible if the U.S. government indulges its authoritarian impulses, if new technologies are utilized in such ways, and if the means of redress and reform of such excesses are not available to Americans.

But it’s an easy thing to acknowledge Mr. Maciej’s worst fears, and continue to argue for the specific use of the technology in this particular program.  And further, while Mr. Maciej may believe he has lifted his eyes from the narrow confines of one particular program and one particular legalism to see The Big Picture, I would argue that there are even wider vistas — political, moral and practical  – he is ignoring.

I’ll explain where in detail.  But first, I’ll acknowledge Mr. Maciej’s culminating statement as evidence of the distress on the part of folks who viewed the HBO drama “The Wire,” who know my opposition to the drug war, and who think this issue should be a no-brainer for the seeming ideological totem responsible for that drama.  After concluding his best case and arguing the potential — potential, mind you — for authoritarian overreach, Mr. Maciej remarks:

“These barricades are going to seem awfully lonely if we can’t even get David Simon up there with us. The man should be a natural ally, and the fact that he sounds so exasperated troubles me. The fact that he seems resigned to a future of total information retention troubles me. The fact that we are talking past each other troubles me most of all.”

We are talking past each other, indeed. And if I sound exasperated with other liberal voices on this issue it’s because their barricades are in the wrong place, facing the wrong way, defending the wrong moral and legal terrain.  Thus far, the sum of liberal argument against the NSA program amounts to a Maginot Line of legal ignorance, borrowed libertarian selfishness and positive proof  that those who fear a civil liberties apocalypse and wish to fight against such were decades late to the fields where those battles actually rage.  Shit, they’re still not in the right place.

If conservative, then you can support this program and others far more intrusive with Cheney-like contentment, regardless of how many Orwellian nightmares are conjured by others.  And if you are libertarian, well hey, there’s never an act of communal sacrifice or societal aspiration that rises above the requisite contempt for collective governance and shared responsibility. For them, this issue is tailor-made.  But hey, at least those folks are consistent.

On the other hand, it’s no surprise that liberals and moderates are flailing about on this issue, some to one side, some to the other.  For some of the folks over The Nation, for example, anyone shirking the call to outrage here is a half-hearted, cringing Trotskyite.  And for those who evaluate every issue in terms of simple political equations, such reluctance is quickly assessed as apologia for Barack Obama, who, frankly, has civil liberties affronts to answer for other than this particular datapile.  Yes, there are all sorts of half-assed ad hominem reasons to explain why an ally wandered. And yes, too, I’m sure that for those opposed to this national security program, it feels a little undermanned on the barricades. It should.

Because thus far the folks who are outraged at the NSA for this particular affront are having a hard time making a case against the stated purposes of an actual program with actual goals. That stuff keeps getting in the way of what they really want to discuss, and discuss passionately, which is purely theoretical: The possibility that this kind of information, gathered together, crosses some sort of technological and moral rubicon, that it is here – with this use of this particular digitization — that we lose America to authoritarian overreach. And it’s in that hyperbole — indifferent as it is to legalisms and court-honored law enforcement strategies, and to what is politically possible to protect privacy and civil liberties, and what is not — that they lose me.

Not because I am a credulous sort, or because I prize blanket assurances of security or protection.  At some time and by someone, I do indeed assume a misuse of this data as I assume a misuse of every and all law enforcement capability and asset. And before disappointing all my fellow lefties,  I believe I was, when last seen, arguing ad nauseum against every aspect of the war on drugs, urging not only decriminalization but the use of jury nullification in all non-violent drug cases as an act of mass civil disobedience.

But here , with the Chik-Fil-A of national security-civil liberty imbroglios,  the left has once again picked the wrong battle, and done so with its usual precision. For starters, the arguments of those opposed to this NSA program make not a dent against the practical application of the data, the legal precedent for such, or the stated goals of this particular program for a societal good. That’s always a problem, regardless of how many terrifying authoritarian nightmares can be conjured off-stage. Good governance is its own argument, and the use of this data, in this particular program, makes practical sense for the purpose the goverment claims. Phone metadata has been a law enforcement asset for decades now; it’s application in this particular program, as a counter-terror measure, is credible. Debates about bad governance — about what will happen if and when the data is misused in another capacity carry less weight with most Americans. We are not a country of luftmenschen, and since at bottom, this government is supposed to be ours, or at least that’s what the owner’s manual still claims in the opening pages, it’s no surprise that already, even in the wake of the revelation of the program, most Americans are tolerant of it.

“People have good intuitions about the danger of indiscriminate collection and retention of their data,” writes Mr. Maciej. “They’re not being hysterical.”

Indeed.  And polling data that shows a majority of Americans willing to accept the terms of the phone metadata model also reveals more concern and more opposition to the government acquisition of internet data through the PRISM program.  There, the mining of internet data and emails creates an uncomfortable equivalent between metadata and actual content — the government could be reading what we write, not merely that we wrote something to someone, and doing so without constitutional impediment.  The variance in opposition between the two programs tells a tale, and before claiming a populist mantle, Mr. Maciej should acknowledge that such variance might reflect the fact that fellow citizens note substantive differences in the two programs.

Instead, rather than crediting us with any attention to detail, opponents of national-security monitoring rush to insult the rest of us sheep-like naifs by declaring, with all intellectual arrogance, that it’s grevious when people fear terrorism out of all proportion to the liberties they shed in fear of that terror, that we can’t see far enough ahead to perceive the totalitarianism to come.  The Benjamin Franklin quote is quickly invoked, that fine old saw about trading essential liberty for security, deserving neither and so forth. Contempt only is due for the possibility that a good many people might have taken a second glance at what this program actually does, considered this against the risk, and made a balanced choice.  And yet maybe the right to not have your phone data — a class of information without constitutional protection for decades now — dumped anonymously on the floor with 300 million other Americans  so that our government might route suspect numbers through that haystack, maybe that isn’t such an essential liberty that’s being traded after all.  Maybe the essential liberties are being traded elsewhere, in places where few liberals and libertarians deign to fight.

*         *         *

For decades now, I’ve seen the aftermath of botched drug raids; early morning mayhem in which police, using mauls and wearing body armor, smash through the front doors of ghetto homes, guns drawn, shouting for sleeping residents to drop to the ground.  I’ve seen raids of sixteen or eighteen addresses come up empty for drugs and weapons at more than half of those locations. And of course, I’ve seen raiding officers drop a copy of the signed, documented and perfectly legal probable cause on the rowhouse floor, gather equipment, and walk out of homes from which they recovered no evidence of criminality.

“Are you gonna fix my door?” is always a stunned resident’s first question.

“You need to call the city for that,” is always the ready, ambiguous reply.

What poor and working-class communities routinely endure within the very constitutional construct of our drug war makes the wails of indignation over this NSA data-mining astonishing and embarrassing to me. And no, before you get wound up prematurely and choose the too-easy, I-didn’t-read-deep-enough argument, I am not saying that overreach in other realms of the criminal justice system justifies overreach anywhere else.

After all, no one is suggesting that we do away with court-approved search warrants for domestic crime suppression. Or dialed-numbered recorders. Or interrogation rooms. Or informants. Or just about any other law enforcement asset that can be used properly and misused egregiously.  Oh, more people are now complaining about the excesses of the drug war, to be sure.  But all of us understand that the existing legal weapons and strategies are there for all crimes — for murder, for rape, for robbery, for burglary. Hell, if a crew of detectives were pulling cell numbers off a tower to identify and arrest a rampaging serial rapist — and traipsing through the phone metadata of ten thousand other citizens to do it — we’d do more than applaud; we’d buy the film rights. We are comfortable with a certain level of intrusion involving all previous weapons of law enforcement, and even the use of phone metadata as it can be utilized.  Why, I wonder.  And why has this particular law enforcement intervention– no less legal as it was proposed to the FISA court — engaged the worst fears of many.

The grand scale of the conjured nightmare?  Sure, the fear of the massed totalitarian power of a surveillance state gets points for imagination.  Mr. Maciej refers to himself as a technologist, and it is his considered opinion that the computer capabilities of the NSA are such that the government has finally created a law enforcement asset so big and dangerous that we dare not lift it, even to a legimate task. Maybe so. And yet my problem with drawing the line at the technology itself is that it ignores the actual and essential responsibilities of self-governance. It’s head-in-the-sand pretending, as if we can simply ask law enforcement to avoid using any of the really sharp and pointy things in its tool chest, rather than ask the government — our government — what it is building and why. That is where the hard work of sustaining a democracy must happen, and isn’t happening.  And anything that further delays or excuses our delay in addressing the systemic is, I’m sorry, a waste of time and energy.

All of that high-minded pontificating wouldn’t mean much, I agree, if someone could show exactly where the NSA program, as government officials brought it to the FISA court, was actually illegal or even creating an intrusion on the privacy or civil rights of individual Americans in excess of other allowable legal tactics.  But they can’t. As proposed and designed, its intrusions are modest when compared to what we have embraced already, and for decades now. And further, I believe that by constructing a techno-scare factory of Bourne-level propotions about this particular datapile, civil liberties advocates have actually damaged the credibility of their own case.  They’ve walked past the places were authoritarianism is ongoing, actual, and where the fight should be. By the totality and tardiness of their performance, they’ve made clear to folks like me that their focus is not on where privacy boundaries exist for others, but for themselves and those like them only. Because as purposed and as argued by the government, the legitimate uses of this particular NSA program might equate to one of the most discriminate and least troublesome intrusions into civil liberties that I’ve witnessed in decades of covering and considering law enforcement.

How can I say this?  How can I dismiss a court order that gathers the phone call data of every single American into a data base controlled by a national security agency with unrivaled computer resources?  Don’t I see the obvious civil liberties risks?  Don’t I understand the implications?  Well, let’s see:

First of all, the core fact never acknowledged by the folks doing the headless-chicken act over this program:  All of this data is already available to law enforcement, to the government. Not with a warrant, not with full-blooded affidavit of legal cause. No, it’s accessible through even the most preliminary investigative step. With a court order so rote it damn near writes itself, any police officer or federal agent can obtain a historical record of your phone traffic, or attach the cellular equivalent of DNR to capture your activity in real time.

If they want you, they got you.  If they’re interested, this data is theirs for the asking. Always has been.

Ah, but they’re looking for a particular suspect, you say.  How can they go beyond that suspect?  How is that legal?

Well, in my original post, I cited, by way of example, DNRs that Baltimore investigators set up on city pay phones, acquiring phone numbers and call data for drug suspects along with thousands of innocent Baltimoreans using those phones. I could as easily have cited successful acquisitions of numbers and data from tens of thousands of callers pulled randomly and legally off a West Baltimore cell tower for weeks at a time by law enforcement, and of course in that case, the vast majority of calls were by innocent Baltimore cell phone users. This is legal because the capture of phone data is not considered a particularly invasive investigative goal, and because phone metadata, as third-party material shared with your phone carriers, lacks constitutional protection. So never mind this big datapile in Utah, the government can routinely fish for data among tens of thousands of innocent phone subscribers anywhere it thinks it needs to. But even beyond this fundamental omission, those opposed to this NSA datapile overstate their case even further:

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.

*            *           *

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.

*       *        *

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.

*    *     *

158 replies
  1. Viktoria Michaelis says:

    Just taking one small point here, amidst the mass, data collection of phone meta data has existed for decades. Every single phone company – recently every single ISP – collects this information automatically. Fine, the information is separated one company from another, but it is still there and it has to be there. How else are the phonebills going to be created?

    That the NSA – or any other agency – collates this information is merely a step further up the ladder and there is, as far as the collection is concerned, no difference. The problem is more of what they do with that information once it is collated. And the question which must also be asked is: how do they determine which numbers are suspicious without having access to more than just the phone metadata?

    Reply
  2. Arun says:

    Glenn Greenwald on ABC:
    http://abcnews.go.com/blogs/politics/2013/07/glenn-greenwald-low-level-nsa-analysts-have-powerful-and-invasive-search-tool/

    Today on “This Week,” Glenn Greenwald – the reporter who broke the story about the National Security Agency’s surveillance programs – claimed that those NSA programs allowed even low-level analysts to search the private emails and phone calls of Americans.

    “The NSA has trillions of telephone calls and emails in their databases that they’ve collected over the last several years,” Greenwald told ABC News’ George Stephanopoulos. “And what these programs are, are very simple screens, like the ones that supermarket clerks or shipping and receiving clerks use, where all an analyst has to do is enter an email address or an IP address, and it does two things. It searches that database and lets them listen to the calls or read the emails of everything that the NSA has stored, or look at the browsing histories or Google search terms that you’ve entered, and it also alerts them to any further activity that people connected to that email address or that IP address do in the future.”

    Greenwald explained that while there are “legal constraints” on surveillance that require approval by the FISA court, these programs still allow analysts to search through data with little court approval or supervision.

    “There are legal constraints for how you can spy on Americans,” Greenwald said. “You can’t target them without going to the FISA court. But these systems allow analysts to listen to whatever emails they want, whatever telephone calls, browsing histories, Microsoft Word documents.”

    “And it’s all done with no need to go to a court, with no need to even get supervisor approval on the part of the analyst,” he added.

    Reply
    • David Simon says:

      So, Mr. Arun, are you as dishonest as both Mr. Greenwald and CNET in your presentation? You systemically trimmed out the other elements of that wire story, eliminating all the doubting quotes from other officials who were dismissive of Mr. Greenwald’s claim, leaving only the claim itself. Are you too intellectually corrupted to allow the whole story, with the responding doubts, to stand? Or can you only post affirmation of your pre-conceived beliefs?

      Oops, yeah. I read the full, balanced version yesterday. So did you apparently. But this is all that you felt the need to post.

      Reply
  3. Arun says:

    Our government is a scoff-law in public view; one can only imagine what it does in secret.

    The law requires that if a country has a military coup, we must cut off military aid. Well, the lawyers at the State Department struggled three weeks and some and came up with the brilliant “we don’t have to decide whether Egypt had a coup or not”.

    http://abcnews.go.com/blogs/politics/2013/07/reporters-grill-state-dept-on-egypt-coup-decision-punt/

    Other strange government behavior is the Attorney General’s letter to the Russian Minister of Justice.
    Commentary on why it is bizarre is here, http://delong.typepad.com/sdj/2013/07/william-black-is-it-legal-malpractice-to-fail-to-get-holder-to-promise-not-to-torture-your-client-noted-for-july-27-2013.html

    Reply
  4. Arun says:

    You believe you are injured by some government action. You go to the court for redress. The judge asks – where is your evidence? You say – in various government files that I want to subpoena. The government says – but they are secret, you can’t have them. The judge concurs, and says – you have no evidence, go home.

    This is kind of like the blasphemy law in Pakistan. Say your neighbor accuses you of blasphemy. Under the operation of their law, you have to be arrested immediately. “On what charges?” “Blasphemy”. “But what did I say?” “We cannot repeat it, that would be blasphemy”.

    Blasphemy there, secrecy here. In the name of the Prophet there, in the name of National Security here.

    Reply
  5. Arun says:

    1. We would not know of NSA phone metadata collection and other surveillance if our government had the choice.

    2. A couple of Senators (Wyden, Udall) have wanted to talk to us, the public about it, but have felt constrained by the secrecy restrictions placed on them.

    3. The FISA court’s judgements are in secret. From Snowden we now know that having gone from approving particular cases of surveillance, the court has graduated to rubberstamping policy. It is also hard to imagine that our government is so law-abiding that of all the thousands of submissions to the FISA court, only one or a few have been rejected.

    4. What is legal depends not just on the text of the law, but on the interpretation of the law. We all know of John Yoo’s infamous opinion that waterboarding is not torture that flies in the face of enormous precedent. We need to know under what interpretation the FISA court is rendering its judgments.

    5. If everything is as the government says it is and we can trust their assurances, sure, it is all legal. But at the very foundation of our nation is the idea of not blindly granting that trust. Yet, everything is shrouded in secrecy, how are we to know?

    6. Do you want us to believe that government when protected by secrecy, does not abuse its power, when, without secrecy and in the face of considerable opposition, the legislature enacts, the executive signs and the courts uphold rancid laws like the Stand Your Ground abomination? Put on the mantle of “national security” and somehow all these all-too-humans become angels?

    All I can say is God bless Snowden and Greenwald.

    Reply
  6. Yusuf S says:

    Although I agree with you David that the phone metadata pile infringing on our constitutional rights is hyperbolic I at least want you to acknowledge in the wake of Snowden’s leak that it is institutionalized power and not bloggers that are ruining investigative journalism.

    Would pay good money to see you and Glenn Greenwald discuss the future of journalism.

    Reply
    • David Simon says:

      You have mischaracterized everything I have ever argued about journalism. Please go back and find where I have said “bloggers are ruining investigative journalism.”
      Never said anything close. Never thought anything close. Never used the phrase “investigative journalism.” Have contempt for the phrase, actually. Never blamed individual bloggers for doing anything of the sort. Aggregators? Yes. New media mavens who equate the quite-relevant role of bloggers with professional reporters? Sure. Media companies that whored themselves relentlessly to Wall Street? Definitely.

      I don’t think Mr. Greenwald is equipped to discuss journalism on terms that matter to me. He is an advocate, and there is a role for advocates. But the Guardian embarrassed itself by becoming his passive shill. The information about the Verizon leak was newsworthy, to be sure. Had it been handled cleanly and dispassionately, and reported with less hyperbole and cant, then the newspaper would be that much more credible in presenting this important issue. They ceded too much of their professional role and it shows in the coverage and the commentary resulting from the coverage. Give me a professional reporter any day.

      It’s no wonder Mr. Snowden would leak to Mr. Greenwald. He could expect unquestioning and devotional service. No disrespect to Mr. Greenwald for publishing the leak, of course; to do so is entirely journalistic. But his rush to exaggerate its purported malevolence takes away from the journalism.

      Reply
      • Yusuf S says:

        Didn’t mean to put words in your mouth, my bad. I just vaguely remember you having animosity towards the blogosphere I think in a talk at Loyola. But again, I over-stated and implied that you thought bloggers were ruining journalism when that clearly isn’t what you meant. I wanted your take on Greenwald, a former blogger, reporting on it. He’s [Greenwald] handled himself quite well in the press, advocate or not, and has exposed many a mainstream news outlet to be quite the shills themselves.

        Again, didn’t mean to mischaracterize your thoughts on journalism. People around my age and I tend to look up to people like Jeremy Scahill, Michael Hastings and Matt Taibbi, and upon reflection, they’re all advocates, lol.

        People are so disillusioned now-a-days with media coverage that they go to Al Jazeera, RussiaToday or Vice for insight on international news, what are your thoughts on these outlets for a news source?

        Reply
        • David Simon says:

          I think the internet is an extraordinary democratization of commentary and opinion. That is why I maintain a blog.

          I am dismissive of the self-aggrandizing believe of most bloggers that what they are doing approximates in any way first-generation reporting. It does not. I have done both things. They are entirely different endeavors. The presumption that professional journalism will be replaced by some thousand-points-of-light scribbling from a diffuse and opinionated commentariat displays just how ignorant some people are to what professional journalism requires.

          In a perfect world, The Guardian itself assigns a more dispassionate reporter to assess the substance of Mr. Greenwald’s leak, and due diligence is done and the reporting is achieved without the corruption of advocacy. The outcome is still significant, but more credible. I disagree with you about Mr. Greenwald’s performance in the media. I believe he has damaged the substance of his real revelations, and in some critical ways marginalized his own advocacy. When you are, as a matter of argument declaring that the NSA programming is “indiscriminate” you are using loaded, editorial words and doing so without legitimate evidence or context. Based on the actual intrusion into the lives of individual Americans, the phone metadata pile and its stated use — not its imagined, and those far, undocumented misuse — is about the most discriminate affront to individual privacy in the realm of proactive law enforcement. I can think of any number of legal interventions ongoing as crime suppression tactics that are far more indiscriminate. And when Mr. Greenwald, in righteous tone, savages someone in an ad hominem email who has worked his entire life to good effect for world peace, I pine for the decorum and responsibility that comes with being a professional reporter. His recent remark to Mr. Serwer was shameful.

          No, let the advocates advocate. They have their role and it is a worthy one. Let those who want to report do so with a passion for the acquisition of facts and narrative, but a dispassion for the political import and uses of their material. This is not a worthy development in our media culture. Mr. Greenwald’s presence in the news-gathering process here is telling not as a function of his superior performance or capability, but in the fact that his source wished to deal only with the most passive and affirming medium. A journalist can never be such. An advocate is always such to those allied with his view.

          That is not me critizing blogging. Never have. No reason I would. That is me arguing for a standard in journalism that is meaningful. That many are dissatisfied with mainstream media for other reasons is not a relevant argument to this. There are myriad reasons to critique mainstream media, especially the thin gruel that newspapering has become in the failure of the print media revenue stream. And professional journalists will err and fail as a matter of routine. But they will do so by and large without ideological agenda. I worked in newsrooms much of my life. We wore very little on our sleeves other than a desire to bring some accurate version of the news back to the campfire and tell it well. That is a skill set and it matters. And if it is disappearing, we will be the worse for it. And Mr. Greenwald’s passion, in the wake of the initial revelation, is, for me, definitive evidence of this.

          Reply
          • Yusuf says:

            Yeah, I see what you mean. Just read his comment to Mr. Sewer, and I agree it was a shameful backlash to a seemingly innocuous initiation by Sewer.

            I discovered this site last night and have been utterly glued to my screen reading PRISM posts rife with pure vitriol in the comments. In some of your responses it seems like you’re having genuine fun sometimes rather than being flustered at people’s stupidity.

            One thing, it’s not necessarily a disagreement but a statement is that we haven’t yet ascertained all that is to be seen in domestic datamining being indiscriminate, as seemingly very little of the information and evidence Snowden has come forth with has been publicized…

            I’m just wearisome of Government overreach, I suppose. While you say, and I agree, that the Verizon PRISM leak was over-stated, there’s no doubt an established school of thought that sees it as a stepping stone to take a further mile where a yard is granted. If anything these leaks have begun an actual dialogue on discerning the nature of the FISA courts, at least I hope.

            P.S. Glad you found an outlet fit for your intelligence. Twitter, I’m sure, would drive you off the deep end. More than one your quips on the comments of these posts has made me laugh out loud. If you decide to put a monthly fee oriented towards which ever non-profit organization, I’m down. Looking forward to Legacy of Ashes if it every gets greenlit. Stay frosty.

            Reply
            • David Simon says:

              I agree that government overreach is an inevitability, now and forever. My standard is to punish such and legislate against such specifically, rather than bemoan the legitimate uses of technology. That’s it really.

              As to having fun, sure, yeah. Isn’t it fun to argue? No?

              Reply
  7. Jeff Marks says:

    Ferocious! Damn Simon! Just as true as when I read The Corner 14 years ago… you can motherfuckin’ write!

    Reply
  8. Golly says:

    Mr. Simon, with this latest post, I think it is a good cue for you to leave off with the polemics and counterpoints and say what you want.

    It seems a little impolite to scold you on your own blog, in your own home, but as much as I love polemics and debate, ultimately, they don’t establish a full position. They aren’t enough.

    You say as to the location of the barricades — we should be calling on NSA oversight with more teeth and transparency.

    And then you go on to describe how blacks, the poor and other targeted parties are exploited despite all the supposed teeth and oversight and recourse built into our system for addressing violations and abuses and despite transparency. And I know that to be dead-on accurate.

    And you correctly portray the nature of our current Supreme Court.

    The arguments you use to tell NSA protesters their barricades are in the wrong place — are these the same arguments you would use to advise the targeted in America to use, those who will have their DNA collected despite no conviction, who will live the rest of their lives at the mercy of forensic lab workers willing to throw a case?

    I think your polemics here — regardless of where one stands on Phone Metadata — are in real danger of being perceived as a treatise against protest in general, despite your pointing out all the wrongs done in our domestic law enforcement arena. So, I think you need to dump the polemics at this point and tell us what you really believe about 1) protest and 2) say directly what people should protest.

    Because one thing is for sure: After sharing a litany of domestic law enforcement abuses, and acknowledging the guarantee that abuses will happen in just about every program, and acknowledging how crappy the Supreme Court is at dealing with that, telling people the only thing there is to protest here is that congress doesn’t have enough secret oversight of the NSA is ridiculous.

    Our Supreme Court has failed, our White House has failed and our Congress has failed, and we should ignore that? Shouldn’t we be on the steps of the Supreme Court protesting their insular irrelevancy? Shouldn’t we be at Congress and the White House protesting money, greed, tainted foreign policy-making, and domestic realities etc etc?

    I don’t know. I know the trenches. I find some of the limousine liberals hiding out over at The Nation as annoying as anyone. I just would rather you didn’t waste this moment using the underclass to quash the upper class when one of the biggest problems we face is getting these spoiled kids to throw their fates into the same hat.

    And when you spend more time apologizing for the NSA than you do arguing that our foreign policy should work to minimize the creation of fanatical enemies you sound like a war monger. Like a lot of people, PRISM bothers me more than metadata, but if I were going to vent my spleen, it wouldn’t be defending metadata.

    You’ve split enough hairs, you have a nice, large readership. if you want to see protests of the right things in the right place, light the match now. Don’t tell us that our protest should consist of tweaking some secret oversight when by your own passionate arguments about the creation and enforcement of a domestic underclass you don’t really F’ing believe that yourself.

    Reply
    • David Simon says:

      Sir,

      I can’t be responsible for how those unable to follow a careful and precise argument “perceive” that argument. Were it so, I would not have to endure the absurdity of having people now claim that I am saying that because other wrongs weren’t meaningfully addressed or protested, that additional wrongs ought to be ignored. I warned against that in the very preface of the last essay, then went to efforts to again defend the legality and functionality of the NSA phone metadata program, and then noted that the left is attacking the program that, on its face, a much more worthy societal goal than the war on drugs and that is less intrusive to Americans than the war on drugs. And for all that effort, I am told I am splitting hairs.

      No, my opinions are carefully grounded and specific. If they displease you, so be it. But I do not wish to see the NSA technology of using phone metadata as a counter-terror asset protested. I do not think technology is anything more than a neutral asset and it’s inevitable that our society and our legal system will address it as such. I do wish protest to address the overwhwleming secrecy of the FISA court, because when misuse of any law enforcement asset or policy occurs, it is necessary that there be oversight and corrective processes.

      This fellow read what I wrote and addressed it accurately and precisely:

      http://pointsadhsblog.wordpress.com/2013/06/24/david-simon-on-the-war-on-drugs-and-the-nsa-revelations/

      You have not. Nor did that ridiculous essay in on the Atlantic site. It’s a simple but useless business to regard what I have said through the prism of what you wish I would say, leaving out whatever context displeases you. Ergo, your sense that I am not speaking directly and specifically. But I’m saying exactly what I mean.

      Let me close with your summation, which can be dispatched within the exact context of my position.

      “Don’t tell us that our protest should consist of tweaking some secret oversight when by your own passionate arguments about the creation and enforcement of a domestic underclass you don’t really F’ing believe that yourself.”

      Fixing the FISA court and its standards for secrecy will be no tweek. It is actually the hard work of addressing the processes and systems of self-governance and making those things actually work for a republic. It’s a real battle. Going headless chicken over an NSA datapile that is the result of an actual counter-terror program that has actual foundation in decades of constitutional law is not a real battle. It does not address the systemic, or prepare us for the next encounter with new technology in a world in which communal security and individual liberty are at odds. So strike your first shard of hyperbole.

      And as to the second, don’t presume what I fucking believe. Because I am against the drug war, but I am not running around on a fool’s errand trying to argue away the constitutionality of DNRs, wiretaps, informants, search & seizure warrants, etc. I accept the inevitability of a government that maintains certain assets, which, when applied on constitutional grounds and within standing law, are appropriate to the task of crime suppression. I want the protest to be about the use of drug prohibitions to incarcerate Americans. How they catch them isn’t the fucking point; they use the same methodologies and assets to catch criminals of all sorts. Why they are catching them? That is where I apply the means of protest to the drug war. I want us to change the laws that have us targeting our underclass for non-violent drug offenses of all kinds; I am indifferent to the vast majority of law enforcement assets and techniques, save for a few that I do question on moral or constitutional grounds (racially based mandatory sentencing guidelines, civil forfeiture statutes, etc.)

      If you can’t follow this, read the post above. That fellow can. With ease.

      Reply
      • Golly says:

        I give up —

        I get your article. I partly don’t agree and I partly thing you are arguing out in the roughs too much defending every detail.

        There’s no way I am going to pull out my Aristotle, I could – there is hair splitting going on. I’ve read enough Russel and Whitehead to pickle an elephant. I think you should get out of your own hair. But it’s a free country.

        I absolutely feel that this statement is not entirely informed or prudent: “I do not think technology is anything more than a neutral asset and it’s inevitable that our society and our legal system will address it as such.”

        The courts and legislatures can, should and actually are obligated to consider their goals, use, likely use, and likely abuse when implemented or judging their constitutionality. Required to do so, required, especially the courts, and most especially the Supreme Court.

        The law is not and was never meant to be housed in a bell jar.

        Well I tried. You’re going to do what you’re going to do.

        Taking the counter-terror legal developments as a whole in this country, not fingering NSA phone metadata exclusively, we have a big problem on our hands equal to the abuses of any drug war. If you were to concede that, it would please me and a bunch of others, of course. I personally think they can easily surpass the abuses of the drug war and that there are examples of it.

        I understand the metadata issue and I was long aware of its availability to law enforcement, as you know.

        Aside from disagreeing with some of your positions, I just thought you were getting to the point where you were arguing incremental minutiae to defend your arguments. I was not sure how that was contributing to your goals or the debate and suspected you were betraying some of your own beliefs in order to sustain it.

        Reply
        • David Simon says:

          Don’t give up. That sounds so forelorn.

          Here is where I have problems already with counter-terror and the drug war:

          1) Gitmo and rendition.
          2) Torture
          3) The use of executive order to kill an American citizen without even a limited, in absentia judicial process.
          4) Any action undertaken administratively against American citizens or residents without a corresponding process of appeal (no-fly fiascos)
          5) Targeting of journalists to chill reporting under the guise of national security issues. (Holder should go for that alone)
          6) Collection of internet data — as metadata and content are scarcely different — without corresponding Fourth Amendment protections for the actual content, commensurate with a telephonic wiretap.
          7) Dubious constitutionality of the statute that creates a criminal penalty for speaking inaccurately or dishonestly to a federal agent. The penalties for perjury, committed under oath in a judicial proceedings, should not be extended to violate the First Amendment outside of such proceedings. Freedom of speech should not be rewritten to be, freedom of speech that is accurate or that the government deems accurate.
          8) Mandatory minimum sentences and the elimination of parole. Let judges judge. Do not make prosecutors into sentencing officials.
          9) Mandatory sentencing guidelines.
          10) Civil forfeiture statutes
          11) And above all, the use of incarceration for non-violent drug offenses.
          12) Usurous detention and bail procedures, creating disincentives for defendants to go to trial.
          13) Three-strikes laws that require mandatory sentencing without a judge’s discretion.
          14) For-profit prison industries.

          I could go on. Some of the above I do indeed believe are in violation of the Bill of Rights. Some are just bad or immoral policy. Some of them require my own civil disobedience, and all of them argue for my political activism, wherever possible.

          Phone metadata isn’t on the list. That’s what I can’t give you, much as I feel great affection for you, given your sincere exhaustion at my intransigence.

          Reply
          • Golly says:

            —-I am going to tell you. Some people reading your posts would not guess that that numbered list is yours if your name were not on it..—–

            Can we add to the list, the ability of Homeland Security to open even strictly domestic, not international, snail mail of American citizens under Bush-era interpretations of the law, without a warrant and with probably little or no way for the victim to challenge it?

            In 2007 this was in the news and for the life of me I can not confirm it with certainty but it appears to be true.

            Within a few months of Bush’s spouting about it in 2007 I know of a case where it is suspected but can’t be confirmed, involving a journalist’s mail.

            I agree with most of your list.

            Also drug laws screaming discrimination, e.g. Crack versus Coke.

            Re Holder and Journalists — ditto, but just want to add that that pre- and post-Holder, journalists have been getting creamed more than is known because some of it is not being publicized at all, especially with freelancers.

            Post 9/11, Bush, especially starting Bush second term, a lot of them have been getting screwed.

            The increased info sharing and cooperation of local, state and federal law enforcement is increasing the instance of and severity of abuses when they happen. Where once there was a gnat flying about your head, now if you are targeted, you are going to go down from all sides. And for something that was intended to address terrorism, why the hell is it affecting so many people with no contacts with terror – journalists, peace activists etc.?

            Reply
            • David Simon says:

              Ms. Golly,

              I don’t know why you think that list should surprise. I have addressed most of those items in detail, many of them here on this site, repeatedly. Perhaps my reasons for not reacting as you’d like to the phone metadata are more nuanced than you have thus far credited.

              Keep in mind, however, that there was a window during wish the Bush administration did indeed approve domestic spying as counter-terror measures, in extreme of what thus far has been demonstrated in these current revelations. And keep in mind that this window was closed by Bush’s own Justice Department. The DOJ general counsel declined to uphold the dubious constitutionality of that program, and John Ashcroft, in one of his finest moments, told the White House where to get off when they tried to lobby him to reconsider. In that sense, the system did indeed right itself — not from a public controversy, but from the actual checks and balances inherent within the system.

              Agree about crack vs. coke, of course. I included that under the banner of the mandatory sentencing guidelines as a whole.

              Reply
              • golly says:

                I think the obscurity of your plain positions was because I was extracting them from a debate, not stand-alone essays.

                Re the Bush excesses — I am trying to follow up on the outcome of the snail mail thing. I do know that they reigned in some Bush interpretations.

                After posting, I found three FOIAs aimed at the snail mail issue submitted by the ACLU. But there are no follow-ups. I wrote them yesterday to find out more.

                Even if reigned in, I am interested in what they may have found out about it. Judging by the mail issue a journalist had, and if the worry was true – that it was opened by Bush busy-bodies — they sure didn’t waste any time. He announced it in Jan or Dec and by March or April all her sensitive journalistic email was vacuumed right out of her PO Box.

                Reply
  9. Duane says:

    I appreciate your points about Mr. Mooney, stratification and inequality, and share your frustration that so many people just don’t get it. The ‘War on Drugs’ was folly from the outset, a ruse that channeled billions of dollars into law enforcement agencies (and indirectly, foreign paramilitaries) which grossly targeted the impoverished, especially African Americans, for imprisonment on drug possession charges.

    That said, I don’t know how beneficial it is to call-out citizens now awakening to the overreach of our government because it directly impinges on their liberties.

    Yes, I get the hypocrisy you’re confronting and principally don’t disagree with it, but it also risks alienating the very people who might now be open to converting their thoughts and values about how unequally government power and liberty is being applied in America.

    As for the specifics of these programs (a lot of which we still don’t know), we’re basically in agreement that there needs to checks-and-balances beyond the secrecy of a FISA court. I think the broader concern, however, is the creation of a permanent Security State whose ends purport to justify the means.

    I think the NSA complex is far more expansive and invasive than you or most Americans realize, and it’s the scale and scope of the operation that begs the question, “What in the hell are we doing here?”

    I imagine that same thought crossed your mind when observing the lengths Baltimore officials went in cracking-down on drug dealers; but now we’re raising the ante to surveilling the data of ALL AMERICANS, ALL THE TIME, under the premise that only good people with good intentions will make good decisions to benefit the good of society?

    No way. It doesn’t begin to comport with what we know of the corrupting nature of power. And all indications point to the NSA constructing a mammoth, interlocking surveillance panopticon that will be able to track citizens’ movements to an incredible degree and precision.

    We can argue on and on about whether it’s bad, but given the costs and investments required, is this really the best we can do for the future of our country? Our safety?

    Here’s some companion links you might find of value:

    The NSA’s metastasised intelligence-industrial complex is ripe for abuse
    The Guardian
    By Valerie Plame Wilson and Joe Wilson
    http://www.guardian.co.uk/commentisfree/2013/jun/23/nsa-intelligence-industrial-complex-abuse

    The Secret War
    WIRED
    By James Bamford
    http://www.wired.com/threatlevel/2013/06/general-keith-alexander-cyberwar/all/

    U.S. Surveillance Is Not Aimed at Terrorists
    Bloomberg
    By Leonid Bershidsky
    http://www.bloomberg.com/news/2013-06-23/u-s-surveillance-is-not-aimed-at-terrorists.html

    ORIGINAL NSA WHISTLEBLOWER: I Saw The Order To Wiretap Barack Obama In 2004
    Business Insider
    http://www.businessinsider.com/the-nsa-spied-on-barack-obama-2004-russ-tice-2013-6

    Phew, NSA Is Just Collecting Metadata. (You Should Still Worry)
    Wired
    By Matt Blaze
    http://www.wired.com/opinion/2013/06/phew-it-was-just-metadata-not-think-again/

    Introducing Aaron’s Law, a Desperately Needed Reform of the Computer Fraud and Abuse Act
    WIRED
    By Zoe Lofgren and Ron Wyden
    http://www.wired.com/opinion/2013/06/aarons-law-is-finally-here/

    Rise of the Drones
    PBS: NOVA
    http://video.pbs.org/video/2326108547/

    Drone Spying Capabilities Are About To Take Another Huge Leap
    Business Insider
    http://www.businessinsider.com/darpa-argus-mega-camera-most-detailed-surveillance-camera-in-world-2013-1

    Reply
    • David Simon says:

      You mistake me if you think that I am suggesting that we tolerate an unconstitutional intrusion on our civil liberties or privcacy because others have tolerated such in America. I did not say or even suggest that.

      The use of phone metadata — stay on point, sir — is not an intrusion into constitutionally protected material. That is the first premise here, and I am correct in citing this legal standing. This is stuff that a good detective has had in the arsenal for years and years, not merely for the drug war — which I oppose — but for all crime suppression, which I of course support. It has been utilized to good societal effect as any law enforcement asset.

      A second point — not causal to the first — is to cite hypocrisy among those Americans who now react to Mr. Greenwald’s hyperbole in wonderment that this asset might be allowable and might in fact include their own metadata.

      Both things are independently true. But the first is not predicated on the second. You’ve misused my actual argument.

      As to all of your cites, please stay on point. Why are you offering articles on the internet or drones when the topic is telephonic metadata?

      Reply
      • Golly says:

        David, what I think he and I are both saying is that staying on that point you are expending a lot of energy on what can only culminate in a Pyrrhic victory for you as the debater.

        if you want that, you certainly have got it.

        What I think Duane is saying is we may have reached a tipping point where those spoiled kids in the Ivory tower finally see that their fates are in the same hat with those traditionally shouldering the oppression in this country.

        That’s not nothing.

        What kind of society do you want to live in?

        These programs don’t happen in a vacuum. It seems to me you can argue in a bell jar and end up not liking any of the people keeping you company there.

        Reply
        • David Simon says:

          You want to talk about Pyrrhic victories?

          See what happens when you knock down the legitimate use of a technology by arguing the fear of its misuse. Instead of say, arguing for changes in the FISA process that might provide more protection against misuse of all sorts, regardless of which technological advance is in play at a given moment.

          I’m arguing for B, not A.

          And if you think you can harness the sudden and insubstantial fear of anyone who now feels that he or she is personally threatened by this program into a retroactive awareness of larger issues, I am dubious. A couple generations ago, Americans were in the street arguing against wars of choice and amoral foreign interventions. The government resolved that problem. They got rid of the draft. Now, we have wars of choice and political quietude.

          Either fight the wrong where it is wrong, or don’t pretend otherwise. The point of opposition to the Vietnam War should never have been, “I don’t want to go,” but rather, “This is wrong.” But in the end, only one of those mattered. It will be the same with the legalization of marijuana, and with whatever results from this misplaced indignation on the NSA datapile.

          I’m not against the drug war because I want to smoke weed legally. I’m against it because it is wrong. I’m not claiming, hyperbolically, that its methods are unconstitutional. They are not. I am saying that with the drug war, those methods are employed to an immoral purpose.

          And I’m not against the FISA process because I’m afraid to share my metadata with 300 million others in a datapile in Utah. I’m not opposed to practical and achieveable counter-terror programming, if it can be so argued. I’m against the current FISA process because I want such programming to have oversight and the greatest possible measure of public accountability within the national-security framework.

          Reply
          • Golly says:

            Well, you definitely have a point there re the retroactive engagement. I have to say, my hopes are hopes. There is historical precedent on tipping points but no guarantee.

            I may misunderstand your position on abuses of power – Are you more concerned about a law you feel is wrong than by instances when that law is skirted through dishonest or stupid or imperfect acts? Or are you passionate about both roughly equally?

            What bothers you more, the collection of laws underlying the drug law or innocent people waking up to doors knocked down and homes raided because they were falsely fingered in that drug war?

            Both bother me and I think probably abusing the law bother me more. I really hate corruption – really hate it. I hate it more than street criminals because of the outsized government power behind a corrupt official. You can evade most street criminals a lot easier.

            I am equally disgusted with a few laws – the drug war laws bother me as much as abuses of law do, for example.

            Reply
            • David Simon says:

              Always the systemic. If a law is used in an immoral fashion, then change the law. If a law is unconstitutional and in error, than we hope and argue and pray that at some point the culture and, in turn, the judiciary or the legislative branch will see it so. Those are the only real remedies.

              But this country has, time and again, made egregious mistakes with regard to its laws and the enforcement thereof and managed to self-correct eventually. The FISA court, flawed and incomplete and vulnerable as it is, replaces mere, unwritten executive authority to wiretap at will. Reforms do follow excesses, and are never wholly sufficient, but they are nonetheless progress. It’s the excesses — the corruptions — that point the argument, again, toward real reform. A pendulum.

              Reply
      • Duane says:

        David,

        Thank you for your thoughtful reply. I think you employed a degree of precision that I failed to meet in my more matter-of-fact comments. Let me try to clarify a few points that if nothing else, will hopefully add to my understanding of the issues.

        I commented on FISA more generally because it is, as I understand it, the umbrella from which these legal concerns have arisen. However, the scope of powers encompassed in FISA, as introduced by Senator Edward Kennedy in 1977 and signed into law by President Carter in 1978, appear to pale in comparison to subsequent amendments.

        The original FISA law is a relatively concise 16 pages in length. The U.S.A. Patriot Act which modified FISA, encompasses 132 pages and was signed into law 45 days after September 11, 2001. This is where traditional FISA rules morphed from collecting telephonic “pen register” data to incorporating computer software and internet surveillance under provisions of the Patriot Act.

        These FISA powers were further expanded under the Protect American Act (2007) where acquisition of surveillance no longer required court approval or warrants, but “certification” by American intelligence officers.

        Concurrent with these legal developments, Apple introduced the iPhone in early-2007 which for the first-time fully integrated telephony, e-mail, and internet access into a single device. A plethora of other manufacturers have followed in their footsteps, placing this technological convergence device into the pockets of the majority of citizens in the developed world. Each device has a unique ID number, and every interaction is logged on the device (and ostensibly to the internet).

        What isn’t included with each of these devices is an explicit statement that every action taken with this device will be silently, invisibly recorded by your government, without cause or suspicion; without your informed consent; and without any ability to opt-out.

        Yes, a citizen *may* opt-out if they’re made aware of these terms, but then you’d have to opt-out of essentially all digital / electronic activities including unencrypted internet usage, retail transactions, and on and on.

        So… I concede the point you’ve proffered that law enforcement’s collection of metadata is not constitutionally protected. Further, I am heartened to know that the proper collection and utilization of this data has led to the successful prosecution of persons who were deserving of losing their civil liberties such as murderer, rapists, and so on.

        The ground I’m staking out isn’t whether our gov’t CAN collect this metadata “legally” — a definition which may be subject to moral suasion based on the current debate — but whether we SHOULD collect every bit of metadata on all American citizens under the guise, “We might just need that information someday.”

        Well, part of the argument for passage of the Patriot Act was that our intelligence capabilities failed the American people, yet we know from the 9/11 Commission that’s not what happened. The NSA, FBI and CIA had significant leads and information on the Sept. 11th plotters, but the real shortcoming was the agencies weren’t communicating effectively *with one another*.

        So, how did we proceed? Not unlike the “WMD in Iraq” justification, American citizens were sold a narrative that our gov’t needed to greatly expand our surveillance capabilities through the FISA / Patriot Act, etc., amendments so that our nation could better defend against FOREIGN threats.

        And what did we actually get? Gov’t programs that serve to sop-up every publicly-distributed bit and byte of metadata under the guise of “security” (homeland or otherwise).

        And just because the SCOTUS’s interpretation of the Fourth Amendment doesn’t recognize individual privacy rights of metadata doesn’t therefore mean this principle shall hold forevermore.

        One last observation: while all of our public internet communications are being trolled by the NSA, there’s an active “undernet” that operates under the radar of search algorithms of Google, Bing, Yahoo (virtually all commercial search engine services) where folks who want to trade nefarious information can do so with virtual impunity.

        Thanks again for offering a digital civic commons for debate of the issues of the day.

        ~Duane

        (P.S. I frequently see wire fraud cases (i.e. Nigerian 409 scams) which often wipe out the life savings of seniors ( >$100K ). Law enforcement seems stymied by issues of jurisdiction, resources, victim culpability. If you have ideas how to facilitate effective LE action, drop me a line)

        Reply
  10. William Pastor says:

    Okay, here are my questions for David Simon and all the lawyers who read this website.

    Let’s take a hypothetical abuse of phone metadata . Evil cop wants to blackmail Mr. Journalist, who is publishing bad things about the police department. So Evil cop gets a court order, presenting no evidence, for Mr. Journalist’s phone records. He looks for anything embarrassing or illegal (calls to known drug dealers or prostitutes, calls to suicide hotlines at 2 AM, calls to women who aren’t Mrs. Journalist at 2 AM etc.). Mr. Simon makes it sound like Evil cop will already get that data automatically with zero scrutiny. But under the current system, is there some chance that the judge will say “I know what you’re up to” and deny the request? Will the record of the court order be made public at some point, increasing the risk that people will find out about Evil cop’s abuse of power? If the answer to either question is yes, then there exists at least one safeguard which is essentially discarded when police have access to this database. If the answer is no, then it sounds like police have had a rather scary power for the last few decades.

    Reply
    • David Simon says:

      Evil cop needs to present just enough of an investigative premise to obtain a court order that he can present to the phone carrier. But he does not need probable cause or very much in the way of evidentiary material. He does not need to exclude other investigative avenues before seeking this data, as he would have to in an affidavit requesting a wiretap. Presumably, he would not be telling a judge that he was fishing to no specific purpose, but would have some general suspicion based on nominal information — info from a confidential informant, for example — that the journalist was possibly engaged in a particular criminal activity.

      There would be a record of the court order, of course. As it would be turned in to to the court as having been fulfilled and executed.

      In most cases, the judge will be indifferent to the outcome, unless what the order yielded becomes part of the evidentiary basis for proceeding with further investigative steps. Also, the judge might deny a request to continue to capture phone metadata beyond the requested period of the initial order if the cop can’t demonstrate that the investigative intrusion is yielding viable indications of the criminal behavior originally alleged. Or not.

      At a certain point, in most jurisdictions, well after the court order is filled and after the investigation terminated, a citizen might be informed of the court order, but usually only after the investigation is complete. It won’t be made public, per se, but some jurisdictions do inform the target that the data was obtained by a court order.

      If the cop wanted to do bad things with the data, such as blackmail, he could. Just as a bad cop can use any other public database — driving history, toll data, arrest history, social service history, computerized info in the police department’s database about previous case involvement as witness or whatever, military history, or anything in the federal law enforcement databases to which he has access. Why? Because a good cop is also allowed to use all of that to research suspects, witnesses, etc. Police work is allowed to happen. And of course the risk is that bad stuff can also happen. Same with every other law enforcement asset right down to the handguns and interrogation rooms and informants.

      If there are any lawyers aboard, I’d be interested in knowing the terms by which the court order is revealed to the target after the investigation has run its course. I know that it happens in the federal system, less sure that they even bother in Baltimore, for example.

      The phone data is far from the only worry, or even the worst fear, if a cop is bad. And if a cop is good, it’s just one more thing in the public or quasipublic domain, unprotected by the Fourth Amendment. A good detective finds out what he can before he even talks to you; it’s a form of incompetence to engage otherwise. If a bad detective is bad, the same assets are there for him. No question.

      Reply
      • William Pastor says:

        Thank you for your response. To clarify, I understand that every police asset has an inherent potential for abuse, I just think there have to be safeguards proportionate to the abuse threat, even where not constitutionally mandated. The cop in my story could shoot the journalist to death, but he would face an investigation and a huge amount of public scrutiny (the case of Ruben Salazar comes to mind). He could plant evidence against the journalist or beat a confession out of him, but the journalist would at least get a defense attorney and a legal presumption of innocence. Phone metadata abuse is much less serious, but it is reasonable to say that some safeguards should exist, such as letting people know if they were targeted after the conclusion of an investigation or after the passage of some number of years.

        I concede your central point though. Hypothetical abuse of metadata is a very minor problem compared with big piles of headless bodies in Mexico.

        Reply
        • David Simon says:

          To credit the problem fully, I have more substantive concerns about the harvesting of internet info, because again, e-communications do not have even the standard protections accorded telephonic traffic. Right now, PRISM is directed overseas, but as the Patriot Act allows cooperation between national security agencies and domestic counter-intelligence and counter-terror agencies, it’s a slippery slope indeed.

          I’d like to see legislation protecting emails, messaging and other person-to-person communications on the internet in the same fashion as telephonic traffic. The revelations about the PRISM program are distinct from the issue of the Verizon court order.

          Reply
    • Golly says:

      There are far worse things happening to journalists than metadata snatching.

      Homeland security under Bush-era interpretations of the law, can steal a journalist’s domestic-only snail mail, even certified snail mail, out of his or her secure post office box on a whim, never tell you and make it nearly impossible and sometimes truly impossible to ever find out.

      They can do this to a journalist, or anyone else, with no ties to foreign terrorists. They can do it on National Security grounds, with almost anything qualifying as a national security pretext, including the mere fact that you are covering national figures, or federal officials.

      Osama bin laden is dead, yet a year doesn’t go by when we don’t hear of the latest Friends Committee peace-nik getting investigated on National Security grounds, or a nun in a peace group or some hapless dimwit entrapped in some terror scheme by FBI handlers when otherwise he would be watching TV and eating potato chips.

      Get real, and get out of David Simon’s bell jar.

      Reply
  11. Jami Floyd says:

    David, It’s time for an Op Doc, from you, on this topic. http://www.nytimes.com/ref/opinion/about-op-docs.html

    Reply
  12. ex-forces says:

    You’re over thinking this. Let me put it simply. Before you post a letter, I assume you put it in an envelope, and seal it? I assume you have passwords on this blog to prevent unwanted people from gaining access? I assume your internet banking has a password which you don’t give out to strangers?

    Why is the simple concept of privacy so apparently difficult for you to comprehend?

    Reply
    • David Simon says:

      Perhaps. Or perhaps you are under-thinking it to an extreme degree.

      Reply
      • exforces says:

        ps – just heard they’ve charged Snowden with espionage. My question is : If the NSA keep saying Snowdon’s revelations are bullshit, how can he reveal secrets which they claim don’t exist? Regardless, the irony is juicy.

        Reply
        • Rousseau says:

          When did the NSA say the Snowden revelations are bullshit? I heard the NSA director say they are a grave breach of security that will result in loss of intelligence data that will ultimately get people killed. No one has claimed secrets were not revealed. You are fantasizing. Snowden is a narcissistic asshole who doesn’t know the law and violated the secrecy agreement he voluntarily signed. He needs to go to jail for a very long time.

          Reply
          • David Simon says:

            Yes. Just so. With regard to NSA’s characterization of Snowden’s revelations, you are correct.

            I am tacit with regard to Mr. Snowden himself. Having chosen an extra-legal path to make his revelations, outside of the federal whistleblower-protection apparatus, this is going to require a prosecution, at which he can make his best arguments for the legality of his actions and, for purposes of mitigation, the morality and justification of his motives. For purposes of the issues debated here, I’m not particularly interested in discussing Mr. Snowden ad hominem.

            Reply
            • Other David says:

              If he gets caught by the US government there is a reasonable probability that he will receive the Bradley Manning treatment and a very high probability that he will serve his time in ADMAX Florence, possibly the most inhumane prison in North America (and that is saying a lot!). I see no reason for him to try to argue his case in court. His only chance to not have his human rights crushed under a boot is asylum or jury nullification. But the later seems unlikely in our brainwashed culture where courts won’t select jurors who even know about the existence of the words “jury nullification”.

              Reply
  13. Jim says:

    I read this and recognized myself in the self-indulgent whining. I now feel embarrassed for letting the hysteria sweep me up and distract me from the intrusions in the actual lives of people around me. Sincerely, thank you for writing.

    Reply
  14. katie says:

    Mr. Simon,

    Speaking of Moyers, did you happen to catch his show with Lawrence Lessig? Wondering what you thought.

    It seemed to me to be a mixed back. Some hype, some Orwell hyperbole, also some common sense transparency reforms. A whole lot of what you are talking about here — an ignorance of the history. Definitely lots to unravel.

    Thanks,
    Katie

    Reply
  15. achilles3 says:

    Mr. Simon,
    Thought about having this “published” in The Guardian?
    Do it!
    :-)

    Reply
  16. Puzzled Anon says:

    So the merits of a complaint depend on whether the complainant has a history of complaining about other things? That means one and the same complaint could be good if X makes it and bad if Y makes it.

    More particularly, does the ACLU at least get to complain about it?

    Reply
    • David Simon says:

      How marvelously reductive. You’ve moved all the way past “the rule of law is the rule law, regardless” to your own special language, tailor made to allow for inconsistency, hypocrisy and continued hysteria.

      We have accepted as a society this standard of intrusion in our lives for this level of security for more than three decades. We have done so across the board with a series of legal precedents and the majority of Americans have not demonstrated anything other than tacit support or affirmation for the standard. And no one opposed can demonstrated that the government has actually used this legal standard of intrusion to violate the civil liberties of individual citizens, let alone target mass numbers with algorithmic categorization. Acknowledging the potential for abuse is not the same as actual abuse.

      And rather than address the reality of the paragraph above, you want reduce this as so? How about dealing with the systemic and the real and where the whole society actual is and what we are actually, to this point, doing?

      Reply
      • Puzzled Anon says:

        Unfortunately for you, the merits of a complaint have absolutely nothing to do with “the reality of the paragraph above”: viz., whether society has accepted this or that. Even if a society accepts one form of injustice, it’s absurd to suggest that this redeems another form of injustice or invalidates the complaints against it.

        Moreover, the merits of this point are what they are, regardless of whether the point “allow[s] for inconsistency, hypocrisy and continued hysteria.” If a good point allows for hysteria, that doesn’t magically change it to a bad point.

        For someone who acknowledges that “there isn’t anything that our identities or status or whatever can bring to the argument” and that “[t]he argument is all”, you seem to have a hard time setting aside irrelevancies and assessing things on their own merits.

        Reply
        • David Simon says:

          Again, I don’t have any problem with this intrusion, and I certainly have no interest in drawing the line on this intrusion at the point where it only affects white folks or those who feel the most politically actualized and entitled in our society. But as it’s been used by law enforcement thus far, over the last thirty years — rather than how it might be theoretically misused — I have no problem. That you do, is for you.

          But then, even so, given that there aren’t five Supreme Court justices who feel as you do, good luck with that.

          I don’t know how many ways to say it: I don’t have a problem with the appropriate use of phone metadata by law enforcement. Get it?

          Reply
          • Puzzled Anon says:

            Hey, feel free to defend the intrusion, just stop doing so on the specious grounds that society has tolerated other intrusions. That’s a big red herring.

            Reply
            • David Simon says:

              No can do brother. It happens that I believe both things are true and relevant. Not a herring to be found.

              The intrusion is constitutional and legitimate. And society has indeed tolerated it for reasons much less justifiable in my mind than counter terror. Both facts are true. Neither obviates the other. Both things are duly referenced.

              You know Fitzgerald’s dictum about first-rate minds being able to hold two seemingly opposing ideas at the same time. Well, these two aren’t even in opposition and the idea that both of them might coexist has already given you a mild headache. Can’t help that.

              Reply
              • Puzzled Anon says:

                You’re badly confused. Here are the two propositions in question:

                1: The intrusion is constitutional and legitimate.
                2: Society has tolerated similar intrusions for weaker reasons.

                Now, nobody’s saying that 1 and 2 are incompatible, or that you can’t think both are true (you’re just attacking a strawman there). What I’ve been pointing out is that 2 is not relevant to 1: even if 2 is the truest fact in the world, that doesn’t tell us anything whatsoever about whether 1 is true. But for some reason you keep pointing to 2 as if it gives some sort of support to 1. That’s an embarrassingly clumsy mistake and you seem to be doubling down on it.

                Again, feel free to argue that 1 is true. I’m sure you’ve got all sorts of supporting reasons. But 2 is not one of them, not even close.

                Reply
                • David Simon says:

                  No, sir, you are the one engaged in a fallacy of logic in your representation of what I actually said. No one is claiming that two is CAUSAL to one, or that two is evidence for one — OTHER THAN YOU. I am arguing that one is evident for other reasons (they are there, elsewhere in the essays) and then I am arguing that two is relevant because it shows something separate and distinct and telling: That we are a country of oblivious fucking hypocrites who have no problem accepting the use of phone metadata by law enforcement in circumstances that are actually less compelling and moral, if it isn’t our ox being gored.

                  You are the one who has manufactured a need for two to prove one. One is proved otherwise. Two is a separate argumentative assertion. The Atlantic writer who recently came at this in an essay did the same precise thing, as ridiculous as it is intellectually dishonest.

                  Get it straight: I have no purpose in arguing two to prove one. One is argued and established elsewhere and by other means. Two goes NOT to proving one, it goes to an additional point about why we are, as Americans, choosing to even argue the inate accuracy of one, now, on NSA, when we accept one in circumstances that have even less moral standing.

                  You have created a CAUSAL fallacy between two and one. Not me. THAT is the straw man here and it is of your exact creation. WHen I say one and two are separate and true — I fucking mean separate. So why are you seeking to claim that I have ever said two is required to be causal of or proof of one. Two is proof of something else relevant, but not of one. Neither does its existence in any way refute one. It is neither causal nor dependent on one and no one, other than you or that silly fella over at the Atlantic, is claiming such. Do you see the fallacy now?

                  Reply
                  • Puzzled Anon says:

                    Oh, sure, NOW you start being reasonable. You had three opportunities to repudiate the 2-to-1 inference, but you never did until now. On the contrary, you kept insisting that I was in the wrong, when all I’ve done here is badmouth the 2-to-1 inference. And somehow I’m misrepresenting you (along with the Atlantic guy) in attributing the inference to you? That’s a bit rich.

                    And now you’re saying that the reason you brought up 2 was not to support 1, but instead to show that America is a nation of hypocrites. But was that thesis ever in dispute by anybody? Your opponents here are attacking the NSA, not defending the ideological integrity of the USA. So your latter-day explanation doesn’t quite wash.

                    But hey, as long as you’re not making the 2-to-1 inference, welcome to the land of reasonable discussion.

                    Reply
                    • David Simon says:

                      I’m not trying to embarrass you or go ad hominem. Let me just say that I reread this essay and at no point is my opinion on the second point causal of my opinion on the validity of the first. Indeed, the first essay makes the case for one, without even addressing two. So de facto, I believe the NSA program legitimate no matter what I believe about the selfish hypocrisies of certain folks. So I’ve been utterly consistent back to square one.

                      If you are saying that it took you a three-post exchange with me for you to grasp this, well maybe that isn’t on me. And if you look at my last reply to you, it’s basically me saying, wow, this guy really isn’t getting it. I’m gonna have to spell it out six ways from Sunday because he refuses to see what should be utterly apparent.

                      And now you wanna yell at me, thinking I’ve been saying something different? Nope. Really Maybe this is on you, fella. Maybe you were deep in a hole that you dug yourself and it took some blunt repetition before you could admit that what you had me arguing, I never did argue.

  17. Other David says:

    Have you seen yesterday’s leaks? There were two documents, one covering non-US surveillance and the other covering US surveillance. The first document isn’t particularly noteworthy (even though it is classified TS-SCI), but the second (S-SCI) does have some interesting points. The first covers some interesting facets on attorney-client privilege and dissemination of information on US citizens to law enforcement. The attorney-client privilege section (Section 4) appears to allow the NSA to get waivers to use in the information acquired and the domestic surveillance section Section 5(2)) appears to allow the NSA to search for crimes and then report them to law enforcement even when the information is not relevant to foreign surveillance (meaning that even accidentally acquired data can be used).

    http://www.guardian.co.uk/world/interactive/2013/jun/20/exhibit-b-nsa-procedures-document

    Reply
    • Other David says:

      I apologize for the poor editing. What I meant to say was that the *second* document (which I cited) appears to
      1) allow the government to use waivers to use information gathered under what would be considered attorney-client privilege, and
      2) allow the NSA to use non-relevant information gathered for law enforcement purposes.

      Both of these provisions are classified CONFIDENTIAL or SECRET (not SCI). Per our previous discussion, I would say that this is one of those policy documents that needed to be released since it allows the NSA (which is supposed to be isolated to only foreign surveillance) to interact closely with domestic law enforcement. I am pleased that the NSA surveillance instructions are designed to protect domestic sources (Sections 4 & 5), but it appears that this law enforcement provision might be an example of mission creep.

      Reply
  18. Anna Tarkov says:

    Here’s a question that’s wholly outside the scope of your essay, but I’m hoping you can help me answer it anyway. That thing that makes middle class people look at poor black people, single mothers, etc with contempt and disdain and classifes them as other, as different from themselves, how do we get rid of that thing? I realize that this might be like asking how to make the sun stop shining, but hey, take a crack at it. Please? Because I’m kind of out of ideas.

    Reply
    • Jonathan says:

      I don’t think there’s any way to get rid of that “thing”, because I think that thing is just a cheap way for people to boost their own ego. In other words, you don’t have to do any work to reap the benefits of being racist (or “classist”, sexist, homophobic, or whatever), it comes for free. That’s why it will never go away. Even if we were all the same color, had the same amount of money, and all lived extremely similar lives, we’d invent reasons to feel superior to other people because it takes almost no work to do and gives us an ego boost.

      Reply
  19. Ben Cohen says:

    This is a great essay, but still takes an essentialist approach to civil liberties:
    If something is a violation of civil liberties, then it is. If it isn’t, it isn’t.
    A lovely notion, but I think this is what Maciej was arguing against, in a sense. At a certain scale, this precept breaks down, at least insofar as it aligns with common sense notions of our civil liberties (admittedly scale doesn’t play much role in legal interpretations).

    For a good theoretical treatment of the underlying issue of scale, Haggerty and Ericson’s 2000 paper The Surveillant Assemblage is a great read.

    Reply
  20. Miggs says:

    Some great writitng and insight on this blog, particularly when much of the reportage about the NSA leaks has been poorly researched and hyperbolic. Some great comments too, and usually I dread to look below the line. More of this on the internet please!

    Reply
  21. Joe Clark says:

    I got about 9,000 words in before I decided that failing even to name your interlocutor correctly isn’t just condescending but a journalistic crime.

    Reply
    • David Simon says:

      The interlocuter himself thought otherwise. You might want to go to the comments and regard the personal exchange that ensued. And perhaps understand that I took the essay, which was not signed by a full name or title, at face value. I spoke to the argument, not the man.

      Once introduced, it was otherwise.

      But if you’re hungry to charge a journalistic crime, well…

      Reply
    • Elizabeth Miller says:

      You have most decidedly stumbled into the wrong blog.

      Reply
  22. TKOEd says:

    Hello Mr. Simon. I think i agree with all that youve said here so I’m not here to talk about that. I just want to make a point about social media & twitter in particular. There is nothing specific or particular to twitter that makes buffoonery more likely to happen there. This is just another medium for folks to be stupid. It’s been happening on the internet since at least the inception of comments on blogs. Most blogs & especially newspaper websites have comment sections that are basically cesspools of thought. Twitter is no different. The difference with twitter that we get to choose who’s thoughts we wish to hear, and THAT is where its utility lies. If you “follow” folks who participate in intelligent, enlightening conversations on twitter you might gain something. If you dont, you wont. The medium has nothing to do with that outcome. Our twitter feeds are of our making. Its not social media’s fault if someone gets the dregs of thought. It’s their own.

    I dont expect this to change your mind, and i hope i havent misrepresented your view of twitter, but as a long time user who finds much value from many intelligent people on twitter i wanted to say something.

    Reply
  23. Jonathan says:

    I don’t know, the whole thing just seems so obviously wrong on its face to me. Add in the fact that most terrorists probably got the clue more than a decade ago that the internet, phones, and electronic communication in general was an easy way to get burned, and I’m totally confused as to why the NSA even wants to run a program like this.

    It would be far smarter, in my opinion, to have teams of people, from the FBI, working directly in places like Google, Facebook, Microsoft, Verizon, … Then, when the NSA got a tip tying an existing terrorist to someone here, the teams could ask the company directly for the info on exactly who they were looking for. No need to create a centralized database of anything.

    One last point…This whole thing seems to be a repeat of the steps that led to the iraq war, bailout, every bush scandal, every clinton scandal, and really every scandal in general. The steps go like this…

    1. Whatever you do, do it so brazenly that people can’t believe you’re actually doing it.
    2. Ignore the obvious and focus on the details.

    Reply
  24. Gavin says:

    “The use of this very data has been a law enforcement asset for decades now; it’s application in this particular program, as a counter-terror measure, is credible.”

    Well, sure. But its status as an asset, at least as far as I can tell, is largely dependent on the scope of its application remaining limited. From what I remember of The Wire, one of the things that made the DNR strategy so effective was that the Baltimore PD already had a collection of suspects (corner boys and their lieutenants) who they could surveil while simultaneously monitoring the DNR. They could watch a lieutenant receive messages relayed from a stash house, send a page, get a response, go to a payphone, and finally make a call. They could then use the DNR to identify the number called and begin to assemble a holistic picture of the distribution network from the bottom up. Just staring at the readout from the DNR, though, would be useless. Sure, a pattern might exist within it exposing a network of criminal communication, but it would be inscrutable without complementary, on-the-ground police legwork directed by specific leads.

    The thing is, if that’s the way you intend on using telephonic metadata, you don’t need to be collecting and storing it the way the NSA is now. You can damn well go through a judge and the telecoms, same as everyone else. The only reason you’d create such a massive data repository is if you harbored ambitions of devising new ways of culling that data. Maybe you think you can start to identify patterns in communication retroactively using the call histories of terrorist suspects already in custody. Maybe you think you can use that information as the basis for a sorting algorithm that will recognize similar patterns as they occur in real time going forwards. Certainly sounds good if we’re speaking hypothetically. My feeling, though, is that this is the kind of tool that shouldn’t be in use until it’s already been very well honed through testing. You’d need to test it relentlessly on historical data until it was reliably identifying verified terrorist plots, while also turning up a minimum of false positives. Because if you were to force the issue and start using such a program within the context of ongoing operations while its efficacy was still unreliable, you’d just end up contributing to the already violently skewed signal-to-noise ratio confronting our nation’s counterterror operations; you’d be red-flagging a bunch of bad leads in a system already overwhelmed by bad leads.

    This, for me, is a sticking point. Our mentality in the war on terror centers around the grim contemplation of “what if?” You’ve described this outlook yourself: what if there were another attack on the scale of September 11th? Theorizing about the loss of life alone is plenty gruesome; when you start to think about the consequences for our foreign policy, though, such an eventuality begins to look almost apocalyptic. The people charged with the task of defending us from such an attack, thus preoccupied, have come to operate within a paradigm where every theoretically good idea must be realized and put to use absolutely as quickly as possible, just in case it ends up being that one idea which single-handedly pulls us back from the brink of oblivion. Dozens of different agencies end up making use of thousands of different technologies in all different stages of development, swelling the already roaring torrent of raw data human analysts are tasked with sorting through in search of actionable intelligence. Meanwhile terrorist attacks continue to occur apace, many of them apparently preventable through traditional means. I know I’ve mentioned Ft. Hood, and the underwear bombing, and the Time Square bombing before as examples. Here I’ll also add the 2009 Mumbai attacks to that list. ProPublica has an excellent piece on that subject, which I think makes my case pretty compellingly:

    http://www.propublica.org/article/defenders-of-nsa-surveillance-web-omit-most-of-mumbai-plotters-story

    Look, I’m not a civil liberties absolutist by any stretch of the imagination. I understand the dialogue between liberty and responsibility to be both legitimate and necessary, and that it is ultimately incumbent on any democracy to negotiate its own compromise between those two ideals. Personally I’m not keen on surrendering the measure of privacy these programs demand of me, especially PRISM. You’re more accommodating on that front. Which, you know, that’s cool. Different people. Different priorities. Different ideologies. Not much you can do about that. But this intractability is why I think it’s really important to try to move this discussion onto a real-world footing. Let’s stipulate that as a country we’re willing to accept a degree of circumscription where our privacy rights are concerned, assuming it promises some additional measure of security. In that case, the question is whether our national security state can realistically make good on that promise. If there’s substantial evidence that it can’t–or that for whatever reason it won’t– then our philosophical disagreements become irrelevant, since I think we can all agree that there’s no reason to give up any of our rights unless we can reasonably expect to get something in return for them.

    The obvious obstacle here is that we don’t have access to a lot of the specific information that would be most useful in evaluating whether our national security state will make good use of whatever latitude we afford it. All we have to go on is what top secret America and its manifold private contractors tell us as concerns the necessity and efficacy of individual programs. Well, that and what we read in the press about successful terrorist attacks and the intelligence failures that enabled them. I think the latter makes a compelling case for policy focused on improving tradecraft in the realms of on-the-ground intelligence gathering, human analysis, and interagency communication, and furthermore implies the counterproductive impact that new, data-intensive technological surveillance programs stand to have on the implementation of such policy. But the NSA and its allies in Congress tell a different story. They argue that the datapile and PRISM are imperative to our efforts in the war on terror. Keith Alexander tells us these programs have exposed no fewer than 50 terrorist plots between them. He hasn’t mentioned whether these plots arguably could have been prevented through older, less invasive methodologies, and of course the details of the attacks will remain classified, preventing us from drawing any conclusions of our own in the matter. Senators Udall and Wyden, both of whom sit on the Senate Intelligence Committee and are thus privy to the details of the cases Alexander has cited, have voiced their skepticism that the metadata and PRISM program have been shown to be necessary or even beneficial, but their hands are tied when it comes to substantiating those arguments. Still, in lieu of actual evidence, it’s worthwhile to consider the reliability of different witnesses. From where I’m sitting I can’t see any obvious political upside to Udall and Wyden taking the stand that they have. God knows in the unlikely event that their advocacy torpedoes these programs and a terrorist attack occurs whose planning might have been exposed were they still in place, both men could kiss their careers in public service goodbye, along with the clearness of their consciences. In the short term, though, I can’t see this winning them any votes, nor guaranteeing an influx of outside campaign cash. Certainly it’ll put the big chill on any pre-existing relationships they might have with defense contractors.

    But what about Keith Alexander? Well, he’s one crazy fuck, that’s for sure. He’s repeatedly professed an affinity for the idea that all digital communications in this country should be run through some degree of automated government screening. He’s frequently passed down orders commanding his subordinates to break the law, most notably in the warrantless wiretapping program. Moreover he’s presided over the rapid privatization of the NSA’s surveillance apparatus. This is important because it means that a lot of the people helping to shape the NSA’s policy priorities actually work for private companies. Unlike their peers in public service, these folks are not concerned solely with national security; they’re also worried about their employers’ profitability. Which, come on: of COURSE they’re out hollering about the necessity of new technology at every opportunity. R & D is fucking expensive. New technology means big contracts, and in some cases it also means new patents on proprietary innovations developed on the government’s dime that can then sold for pure profit on the private market. So we’ve got an unhinged ideologue, openly contemptuous of civil liberties and surrounded by unaccountable corpartists, dictating the pros and cons of counter-terror policy? I’m sorry, but no. It’s not just the potential for abuse that these programs carry with them, it’s their financial cost, and their impracticality, and their questionable utility, and the profoundly undemocratic way in which they’re developed, and the fact that in practical terms we can’t have a robust debate about their very necessity because the information we have to go on is severely limited and comes from obviously unreliable and biased sources.

    Reply
    • Michael G says:

      Do these programs have the potential to prevent every crazy who shoots up a mall or plots against the country? Of course not. Trotting out examples which it failed to stop (Boston, Ft Hood, Mumbai, shoe bomber) denies the reality of crime prevention writ large- that despite best efforts sometimes we fail- and says nothing about the contribution of these approaches, which were never designed to replace traditional methods.

      I don’t speculate whether my neurosurgeon is taking the right approach to removing a tumor- I trust the experts who have built up scientific method to know what approach is likely to work, the licensing of the particular surgeon, and processes put in place by the hospital, state and feds to punish and prevent malpractice. Even then, brain surgery is a tricky business. In modern medicine we take a certain amount of failure for granted, but in government every lapse is proof of gross incompetence.

      I have yet to hear a credible expert say these approaches don’t work- that’s not the debate. The technology is here to stay. Yet this ‘questionable utility’ argument keeps popping up.

      David has quite clearly proved that the unpredictability of methods used by terrorists requires agencies to be a step ahead. Hence the ability to quickly query a large database of potential numbers, versus days to acquire specific subsets of data that may or may not be relevant. That having access to more data is more likely to result in a positive match for a dirty number should hardly be a controversial concept- it’s used because it’s far more likely to work, and is several degrees faster, than traditional methods of trying to hack terrorist communications. Same idea for a DNA or fingerprint database.

      Does a single law enforcement tool usually yield a smoking gun? Or is the combination of many investigatory techniques, by many different actors, the key? I’m glad big data approaches are finally in the counter-terror toolkit alongside traditional means, with judicial and congressional oversight that can be questioned and strengthened, despite not being a panacea. The debate should be on the oversight, not the technology.

      Reply
      • hemantha says:

        > I have yet to hear a credible expert say these approaches don’t work- that’s not the debate

        Eminently credible security experts have been making that exact same point. See Bruce Schneier’s thoughts at http://www.schneier.com/blog/archives/2013/06/essays_related.html and other posts on TSA screening at the same blog. He examines the false positives issue and other drawbacks in much more detail and explains how they ultimately hamstring the entire effort.

        Reply
  25. makeinu says:

    I’ve been following your postings on this from the beginning, and, though I normally stay out of the comments, I have to say that I find your analysis to be the most, perhaps only, cogent I’ve seen on the internet so far.For I sincerely believe that anyone daring to utter the word “Orwellian” to describe this really needs to either recuse themselves from discussion, or get some fucking perspective and read a book. May I suggest “1984″ to start?

    For those that are living in fear over this, manning the bulwarks over this “affront to liberty and justice”, may I point you in this direction, please? This is the actual situation in Hungary right now:

    1984, Hungarian Edition (NYT, on Paul Krugman’s blog, beware the potential paywall).

    The Hungarian parliament recently passed a new national security law that enables the inner circle of the government to spy on people who hold important public offices. Under this law, many government officials must “consent” to being observed in the most intrusive way (phones tapped, homes bugged, email read) for up to two full months each year, except that they won’t know which 60 days they are under surveillance.

    Perhaps they will imagine they are under surveillance all of the time. Perhaps that is the point. More than 20 years after Hungary left the world captured in George Orwell’s novel 1984, the surveillance state is back.

    Do, please, read the whole thing. It’s quite, well, Orwellian.

    Reply
  26. @kiphampton says:

    You demand evidence that these programs have been abused– and I agree that having that evidence would be dispositive– but there are several problems with that. First, the evidence that might prove or disprove instances of abuse is *itself* classified and all legal attempts by the ACLU, EFF and others to obtain more information have been blocked either by the invocation of the states secrets privilege or dismissed for lack of standing. The latter Kafkaesque procedure underscores the problem with your argument. It boils down to “the evidence you need to empirically prove harm is secret and because it’s secret you can’t prove harm. Case dismissed.” See the problem there?

    Beyond that, though, your demands for evidence of abuse ignore the realities of why we have the FISC in the first place: because of well-documented and widespread abuse of surveillance capabilities *by the NSA*. The whole reason we have FISA and the FISC is because the tools that were ostensibly built for fighting the dreaded Red Menace were instead turned on domestic political targets– Civil Rights leaders, anti-war protesters, labor organizers– people who you and I both would probably hold up as heroes. But even the modest bit of oversight that the FISC provided was defanged by the 2008 FISA Amendments Act which, among other things, retroactively indemnified the telecom companies for participating in the clear and documented abuses of FISA under the Bush administration. Abuses which the FISC did not and could not stop, incidentally.

    To cast this all as some theoretical “what if” ignores the fact that there are reams of sworn Congressional testimony documenting past abuses of surveillance power *by the NSA itself*. To imagine that fears of abuse by that agency are somehow in crazy tin-foil hat territory is to pretend that the world before 1975 did not exist. We found evidence of abuse. Those who committed those abuses admitted (sometime proudly) to doing so. We put a system in place to watch the watchers and even that failed to forestall future abuses. And that was *before* it was weakened further.

    You pretend that Maciej Ceg?owski (and, really, you should’ve maybe spent 10 minutes googling him and his work before dismissing him) and others are hysterical paranoids and that you would happily join them on the barricades if they were demanding greater oversight and transparency for this sort of data-driven surveillance but that’s precisely what he, the EFF, the ACLU, myself and other *are* calling for.

    Finally, the whole frame of this post is bullshit. The obvious suggestion that abuse of spying powers was all fine so long as it was happening to “those people” is a smear. You used the example of Baltimore PD tapping payphones in your original post and Ceg?owski tried to point out that the many legal and procedural differences between that case and the kind of collection we’re talking about here put the former on a stronger legal footing. To leap from that to “hey, i guess it was fine when it was just happening to poor and Black folks” is pretty goddamned dishonest, frankly.

    Reply
    • David Simon says:

      I agree with you that because of the secret and improperly monitored FISA construct, it is currently problematic for anyone to claim or believe that we have evidence of misuse if it is occurring. Agree fully. Go back to the original post of mine that sparked the debate and you will find me acknowledging this fundamental — even that early in the discussion.

      It is why the real reform needs to be there — in the secrecy of the FISA world and its lack of legitimate oversight.

      We are in agreement.

      I disagree with you that I have been disrespecting of Mr. Maciej and his posting in any way whatsoever. My indifference to who he is, his background, or his bondafides is purposed. Just as I expect him (or you) to be indifferent to who I am, my background or bondafides. Unless one of us cites some particular point of experience (myself as a police reporter; Mr. Maciej as a technologist), there isn’t anything that our identities or status or whatever can bring to the argument. The argument is all.

      I respected his argument and addressed that, and his tone, to me, was equally respectful. I don’t think you’re being entirely fair to suggest otherwise, or to imply some disrespect because I did not research him. I eschewed the ad hominem and focused on his argument only. And this, my reply to you, is likewise respectful and addressing the content of your post.

      As to your suggestion of some sort of dishonesty on my part for leading with the pay phone example in my first essay and then citing the cell tower harvesting later, I think you might want to take a breath and reflect on when and where you imply dishonorable motives in the presentation of argument. Is it likely that it was a rhetorical trick on my part to offer an example that doesn’t best take into account Mr. Maciej’s later point about GPS data on mobile phones? Or is it more likely and even understandable that I didn’t fully anticipate that point, and upon being presented with it, I responded with a better example?

      Best,

      Reply
      • @kiphampton says:

        I was glad to see that you took Maciej’s arguments seriously enough to respond and doubly glad we’re all in agreement about the need for stronger oversight. We’re long overdue for a full discussion of how the 4th Amendment applies in a world where every move, every bit of mediated communication leaves a durable footprint that, in the aggregate, can be used to reconstruct our daily lives and reveal secrets that even our closest family members might not know. I was less glad that you extended your response to include suppositions about his race/class privilege, which you lean on strongly enough to use as the hook for the post, suggesting that you “have his number.”

        All that aside, though, the reason people are so focused on this specific program isn’t because they are ignoring the larger picture or the more generalized need for better oversight but because the leaks that came last week are among the first bits of actual evidence that we have the these sorts of mass data-gathering programs exist. Before then, we could *surmise* that they existed based on the depositions of people who were in positions to know about them but every legal challenge had been thrown out for the “states secrets”/”no standing”reasons I mentioned above. Hell, until last week, the government’s stated position was that these programs did not exist, period. So it’s not like people have a full menu of NSA surveillance programs and singled this one out– this just happens to be the one we now have enough evidence about to raise a credible ruckus.

        As for why we geeks freak out over these sorts of mass metadata gathering/analysis programs, consider a more harmless example: Recently, a dad angrily confronted one of the shopping chains for sending his teenage daughter targeted mailers featuring products for pregnant women. He angrily maintained that there was no way his daughter, who lived with him, could be pregnant and he demanded that the store stop sending those mailers and apologize. I’m sure you can see where this is going. He ended up apologizing himself when it turned out that the store’s metadata analysis of her shopping habits was right: she was pregnant and hadn’t told him.

        That’s just one example of a private company doing nothing more sinister than trying sell more maternity clothes but it underscores the types of personal information that can be constructed by applying cheaply and publicly available tools to “just metadata”. It shouldn’t be surprising, then, that the people who understand those tools worry about how more sophisticated applications might be used with much larger datasets by government agencies who can absolutely ruin people’s lives if things go wrong.

        The sad fact is that some of the people who have been pushing this story the hardest *do* sound pretty paranoid. They begin with the presumption of bad faith and end up arguing that it’s all some sort of totalitarian plot. WAKE UP SHEEPLE! All I’m asking in that regard is that you endeavor to distinguish between those people and people like Maciej and those in the tech and legal teams at the EFF whose concerns are far more measured and grounded in reality.

        In any case, thanks for your thoughtful reply.

        Reply
        • David Simon says:

          The comment about having his number is not directed at him, personally. I think even he understands that it is a general admonition about where Americans have chosen to assert for privacy and civil liberties, and where they have allowed law enforcement to carry the argument forward. It is a critique of an argument, not of an individual.

          I understand well that big data has arrived and there is much in the way of civil liberties that is now open and vulnerable. I also understand that government must credibly govern, and that in the modern world, terror is, if not an existential threat to the nation as a whole, then an existential threat to our ability to maintain our focus and policies. Americans have not experienced terror campaigns, save for one extraordinary historical event and a handful of smaller incidents. But the Israelis live in a different neighborhood, and they are familiar with the possibilities. And tellingly, a campaign of bombed buses and street shootings managed to topple a coalition government and end a peace process. In the same way that 9-11 led us into Iraq, tragically, the terror campaign in Israel begat Netanyahu. The stakes are high on both sides is what I am saying.

          Here’s what I believe: There will be overreach by the national security apparatus and there will be real and definitive affronts to dissent and civil liberties using the NSA domestically. If it isn’t happening yet, the pendulum here requires that it happen eventually. And it will out. And then, with a narrative of actual abuse, some real reform is plausible. But not if we cry wolf first, or fire our guns at whatever happens to be the first thing to crest the waterline. This program isn’t the right target, even if it happens to confirm the capabilities that you fear. And if we deny the legitimate use of technology to proactive law enforcement and end up with a terror strike, we might be confronting even more authoritarian backlash. I’m willing to wait for a wrong to be done. Most Americans are pretty good at recognizing a wrong from a right; they respond to that in a more fundamental way than to theory and potential, however discerning.

          So I argue to credit and allow the use of technology. Hunt for the inevitable misuse. And seek accountability for all.

          Mostly, after boiling down his post and my response, our major differences are not about the risks or realities, or even technology or law, but about political realities. And tactics.

          Best,

          Reply
          • @kiphampton says:

            I’m not sure we even disagree that much about the political realities. I think your assessment of the consequences of rolling things back then having another terrorist attack are probably correct. Same goes for the reality that most people aren’t going to care much unless/until the stench of abuse is too strong to ignore.

            What complicates this for me, tactically, is that we only know about previous abuses at the NSA, the various domestic covert counterintelligence operations, etc. because the Church Committee did a top-to-bottom investigation of *all* the spying agencies and *that* only happened because of Nixon. Point is, since we can’t know ahead of time which event will spark a public cry for more investigation so the best move is to point out the tip of each iceberg as they pop up.

            Whether you’re right– that raising a fuss over each instance creates a Boy Who Cried Wolf problem– or I’m right– that pointing out each instance creates accumulated momentum for better oversight– that’s a tough one. I’m not even sure how to judge that question fairly.

            I do greatly appreciated you willingness to talk this through. Your back-and-forth with Maciej below is going right to the top of my list of examples of how comment sections don’t have to suck.

            Reply
          • liya says:

            “I’m willing to wait for a wrong to be done.”
            Can’t it also be said that this sentence is exactly what the non-affected population has been thinking about the surveillance in Baltimore, as explained in the post?

            Someone has to shoulder the burden of that first wrong, why is it easy to assume that as long as it is not us, we will be ready to react? Why are you assuming it will not be you specifically? Yes the chances are terribly small, but for the first person to have their life affected by that first misuse, that chance will turn out to be 100%. And that is if we, again, assume, that misuse had not already happened or is in process of happening, and that it will be easy for a person to even discern what was the underlying cause.

            “Hunt for the inevitable misuse.” My gut is telling me that the most important word here is “inevitable”. Living with the knowledge of that inevitability is what is producing the fear and the hyperboles (not that I am excusing them, but I can understand them). Maybe it will be good that from now on, every American is equally afraid – waiting? – as opposed to “only” some of you (speaking as a non-American here). Having lived in country where the State was, and still is to a degree, operating on secrecy and fear, it did not lead to a healthy society, ready to fight the varying degrees of misuses. On the contrary.

            Here is to hoping that your political realities and tactics work in the long run, because I cant even imagine what awaits the rest of us should you fail.

            Reply
            • Whateley says:

              I think it is also worth considering the likely reaction of the government when and if this “inevitable misuse” happens to be found out. I suspect the remedy will be a narrow, targeted one that solves the specific misuse, but won’t address the overall problem.
              One example I am thinking of is the Video Privacy Protection Act, which was passed to protect our cinematic predilections, after the failed Bork nomination. This act is still on the books, and continues to stymie Netflix — but hardly anyone else. I have always thought it strange that we have a strong but narrow right of privacy for our movie choices– but our search stream data and practically everything else online–which can be used for for blackmail and other nefarious purposes– is considered fair game.

              Reply
      • William says:

        Your indifference to his bonafides apparently extends to indifference to his name. He is not “Mr. Maciej” and repeatedly calling him that is, in fact, disrespectful. He is “Mr. Ceglowski”. As Kip Hampton suggested, even the most desultory of Google searches would have cleared this up for you.

        Do you see my point, Mr. David?

        Reply
        • David Simon says:

          Not only do I not see your point, Mr. Ceglowski does not see it.

          I responded to an essay online that was signed by a certain Maciej. I am attentive to the argument, not to the man. Understanding that it is paramount that we address the ideas rather than who offers those ideas, I accepted the anonymity of Mr. Ceglowski’s post at face value. I took his argument seriously and addressed it sincerely, regardless of who he happened to be, or whether he even wished to be identified.

          In response, Mr. Ceglowski wrote in these comments and fully introduced himself. You would do well to refer to his own words in considering whether any disrespect was intended or sensed in our online debate. He feels otherwise, and I certainly hold him, if not all of his arguments, in good regard.

          Reply
    • SocraticGadfly says:

      I actually see other problems.

      1. Simon doesn’t discuss this issue, which many of us opposed to it do discuss, in terms of the larger issue of whether the whole FISA system in general, and certainly since Bush got the FISA Amendments Act passed, isn’t totally flawed in other ways than just this.
      2. I would agree with Kip’s use of the word “bullshit” in that Simon makes this an “either/or.” I don’t know about Maciej, but I **DO** know about myself, about Glenn Greenwald, and about many others, that we oppose BOTH the “War on Drugs” with all its abuses, AND the “War on Terror,” at least as currently framed, with all ITS abuses. And, David Simon, it’s BULLSHIT to imply that we don’t.
      3. Related to that, it’s bullshit to imply that your stance against the War on Drugs is more heroic, or longer, than anybody else of note.

      In reality, given that HBGary Richard and other snooping contractors discussed this a few years ago, I am worried in some ways about Edward Snowden, including worrying that the NSA would have deliberately let him access information that might not be true, to try to discredit someone like Greenwald.

      http://socraticgadfly.blogspot.com/2013/06/snowden-snooping-and-dear-leader.html

      Reply
      • David Simon says:

        You’ve personalized the issue unnecessarily. And to distraction and inaccuracy. Take me out of it. Take you and those you personally regard out of it.

        America is content with this level of enforcement and investigative intrusion not only in the drug war, but in any response to any criminality. For you to think there should be an exception here and now — after decades of utilizing these assets against minority populations — merely because the datapile affects all Americans is specious.

        Can you be dispassionate and argue without racing to the ad hominem? This isn’t about you, or Greenwald, or me or anyone in particular. This is about what the national behavior and legal standard has been — both by Supreme Court rulings and by the practical tolerance of the vast majority of the populace. Arguing your own righteousness in the matter, or those of others — or trying to characterize my rhetorical attention to another, comparable legal reality as being self-righteous or self-aggrandizing — doesn’t help your argument at all, or mitigate against mine.

        Your calling bullshit is, actually, quite bullshit.

        Reply
        • Jason P. says:

          Mr. Simon,

          Have you considered the possibility that many people DO NOT tolerate these behaviors and either don’t know how to go about redressing these grievances or have them fall on deaf ears?

          Reply
  27. Maciej Ceg?owski says:

    I really appreciate you taking the time to reply to my post.

    I stand corrected with regard to law enforcement requiring a subpoena, rather than a warrant, to collect call records. I have corrected the original post. I don’t believe it affects the crux of my argument, but it’s a foolish thing to get wrong.

    Having read your reply, and your earlier back-and-forth with Clay Shirky, I believe I understand better why this particular NSA revelation is a nonissue for you.

    There are two points that I would like to make.

    The first is that the victims of our great national panic around terrorism are the thousands of civilian dead in Iraq, Afghanistan and Pakistan. This is where I think the logic of total surveillance and antiterrorism leads us. I’m not particularly worried about an Orwellian dystopia (I was born in one, it wasn’t so bad!), but rather a repeat of the 2002 run-up to war, where information from intelligence agencies was bent to political ends, and secrecy used to prevent accountability. The larger our national security establishment grows, the more temptation there will be to use it, and we will use it abroad against people less visible even than the long-suffering communities decimated by the war on drugs.

    Second is why I find this particular revelation alarming. I don’t think the brute fact of a call database is a big deal (though I’m not happy about it, for the reasons I outlined). I find alarming the blurring the line between domestic and foreign surveillance. I don’t find the distinction personally meaningful (some of my best friends are foreigners!), but it has historically been a thick red line to the agencies involved, and this is clearly no longer the case. If the NSA doesn’t have a problem conducting blanket domestic surveillance, my thinking goes, then what else is it up to?

    Which brings us to the issue of secrecy. I vigorously, wholeheartedly agree with the penultimate paragraph of your essay. It’s impossible for you and me (or anyone else) to debate the tradeoffs we should make in fighting terrorism when everything is secret.

    PRISM, whch you mention, is a perfect example. Is it a case of the government having unfettered direct access to Google’s databases, as the Guardian initially alleged? Or is it a case of the government parsimoniously using its lawful powers under FISA? We have no idea, since the companies involved aren’t even allowed to give us aggregate numbers. We end up debating the semantics of an ugly PowerPoint slide, meanwhile ignorant of God knows what other programs that remain undisclosed.

    It’s this secrecy that I think is the real evil. It’s corrosive to democracy and the rule of law. We need something along the lines of a Church Committee, with full access and subpoena power, to take a hard look at the activities of our intelligence establishment over the past thirteen years. And just like in the war on drugs, we need to break the gentleman’s agreement between both major parties that puts the topic forever beyond debate or hope of reform.

    I hope on that point we can agree.

    Reply
    • David Simon says:

      Not only do we agree, we are closer in overall perspective than our points of origin — the essays — would suggest.

      Earlier in all of the discussion here, I wrote that I believe the U.S. ran a fever in the aftermath of 9-11, and that our foreign policy — no, make that our national decision-making — became unsteady, even irritational. Perhaps not with regard to Afghanistan, where, let’s face it, we were faced with a nation-state harboring and declining to extradite members of the very extra-national entity that was claiming responsibility for the deaths of Americans and a massive terror strike. But certainly the disastrous war of choice in Iraq is another matter. There, we have squandered lives and treasure and even our own geopolitical purposes (Iran) in an aggression that was not only ill-considered, but deeply tragic.

      That scared the shit out of me. Still does, in retrospect.

      So taking your point — and my fears — further, let me ask you to contemplate the following scenario: Because we don’t fight the authoritarian overreach of our national-security apparatus with systemic reform, and because we make this datapile, at this time, and for this program, our target, what happens if we get hit again? What happens with another two or three or six thousand dead, and at the first congressional hearing, the intelligence director or the FBI head or the NSA director, he sits there with a flow chart showing legislators the actual telephonic intercepts that can be found, forensically and after the fact, in the communications of co-conspirators? And what if, with cameras running, he’s asked why they couldn’t pick up that electronic trail before the strike? And what if he says, remember, senator, we took that program down because of concerns over individual privacy?

      At that point, the rollback and overreach on civil liberties/privacy will make whatever you and I are arguing about now seem quaint, if not antique. At that point, there will indeed be warrantless domestic wiretapping by national security agencies, unsupervised, as hasn’t occurred since the Church Commission. Again, I’m trying to gauge risk and response in a real political world. Which is why I’d rather treat technology as a given neutral, hunt the inevitable misuse and illegality and use the facts of that misuse to build more workable constraints around the authoritarian impulses of law enforcement and national security.

      As to your points about PRISM, I also concur. It is fair to note that my original post went up after the Verizon court order on phone data was revealed, but before the PRISM revelations from the Guardian and Washington Post the following day. I responded to each distinctly, and again, I have a desire to see e-communications given the same legal standing as telephonic content; right now the differentation between online metadata and content is indistinct and ambiguous. Again, it’s the systemic for me, always.

      Mostly, reading your post, I sense that our differences are strategic, or at least tactical, if I am overstating things. I don’t think we see this world, or this issue, all too differently.

      Also, I want to be clear: I just answered another poster here who felt that by not googling your background in advance of any reply, I was being in some way disrespectful. I meant no disrespect at all. I found your arguments substantive and worth a careful response, and I hope you sensed that in my tone. I certainly did in yours. I only cite my own bonafides (police reporter, chronic lefty) if they matter as to expertise on a particular point (law enforcement), or if in response to someone else’s ad hominem (cryptofascist!), and I took yours (technologist) at face value to your understanding of and concerns about digital capability. Who we are beyond that seemed to me extraneous to the argument itself, which is my interest, and clearly yours as well. I just want to be clear, because the previous post suggested some disrespect on my part. Surprising. I intended none whatsoever, and felt none directed at me.

      Best,

      DS

      Reply
      • Maciej Ceglowski says:

        I’m running out of things to disagree with you on. I think another terrorist attack in which even a dozen Americans lost their lives would be an opportunity to get a wish-list of surveillance measures passed that would, like you say, make our current back-and-forth look quaint.

        The question then becomes – once we’ve all agreed to stand on the same barricade – what can we realistically do to up the ante? I think one reason some of us from computerland spoke up about the NSA allegations is the feeling that here, for once, we might have some leverage over those in power.

        I was delighted by the comment suggesting you somehow did me – a random dude from the Internet – wrong by not Googling my background. I think you showed me great respect by engaging my argument on the merits, and I’m grateful for your substantive reply.

        Reply
        • David Simon says:

          I suppose I will start having to spell your last name, Mr. Ceglowski.

          Seriously, I’ve been writing a lot on this issue — in part because the security v. privacy dynamic is interesting to me as an ex-reporter and ex-crime reporter at that. But also, if you’ve come to this site and looked at the comments, I’ve tried — as almost a social experiment with the feral beast that is the internet — to try to underwrite, with verbiage and emotional equity, a merits-based discussion and argument about the issue. This is off-point to the substance of the thing, but I wanted to see if I could convince others to raise the level of debate beyond the usual unfocused commentary that trails every other internet site. It ain’t easy. Folks love to name-call, and while brevity may be the soul of wit, it’s also the soul of a lot of weak-ass snark. It certainly isn’t helpful when dealing with something as detailed as say telephone metadata, internet captures and the constitution. So your post was fresh air.

          Re: realistic reform. The thing about the pendulum of reform is that it swings only after the shameful shit hits the fan. A lot of people act as if the inevitable affronts to privacy and the misuse of national security authorizations, if allowed to occur, will be the de facto surveillance state. But it’s not that thin a line. This country went through Hoover and McCarthy and the internment of Japanese-Americans and the red scare of the late teens and so much else. And we have a great capacity for righting ourself — but usually only after we’ve genuinely shit the bed. It’s regrettable that American politics can’t be less reactive, but there you are. I’m thinking (as you are) that the government will indeed overstep and probably is doing so now. And there will be affronts that become public because they always do, eventually. And then people will be angry, and rightly so. And that is a window, an opportunity. Just as another terror attack will excuse great anti-privacy excesses and authoritarianism, a real civil liberties scandal — with actual victims, and a narrative of betrayal and dishonorable spying on citizens domestically — can produce real reform. We can try it on the basis of this datapile, sure. But I’d rather wait and catch the NSA reading our credit card statements, or maybe the Kardashian email accounts. Then we’ve got something. Politics is timing. And again, I agree with you. The dynamic isn’t going to go away. At points, the NSA and FBI and other agencies will overreach because, well, it’s the nature of the beast.

          It is a pleasure to make your acquaintance.

          Reply
          • SocraticGadfly says:

            The problem is, even after America officially rights such abuses (or theoretically does so) the wrong lesson either gets ingrained in too many minds, or, the pre-corrected version is left out there for cherry-picking, like all of Bush’s selected references to “Lincoln did this.”

            Another issue? The NSA and our bipartisan foreign policy/spying establishment will just nibble up to the “reading our credit card statements.” Per your quote of Ben Franklin and the implication that some people wave it too often and/or too soon, the death of civil liberties by a thousand cuts is easier when someone says, “Wait until cut No. 676, then we’ll protest.”

            Reply
          • Joe Schaad says:

            David, I thank you for your substantial efforts to remain engaged with your commenters, in this post, in the post that initiated this discussion, and in all of the other posts of yours that I’ve had the pleasure of reading.

            It’s often hard to simply write a good post. The subsequent toil of tending to the comments garden is rarely given much consideration, and yet, in my opinion, it’s just as hard to keep up a well-managed comments section as it is to maintain the blog entries that attract readers.

            Reply
        • @kiphampton says:

          Okay, so I was kind of a dick with the whole “You should google it” thing. I’ll cop to that. Sorry, Mr. Simon!

          All I can offer in my own defense is that I’ve followed your work since the days of Seach::ContextGraph so, to me, you aren’t just some “random dude on the internet.” :-)

          Reply
    • Allan says:

      Maciej, I noticed on your blog you stated, “I believe a world in which everything is recorded and persists forever carries the seeds of something monstrous ?. It is in the nature of computer systems to remember things indefinitely, but there’s nothing difficult about programming machines to forget. It just requires laws to do it. We can’t treat it as a technical problem. And to get the laws passed, we need to politicize the issue. ”

      So you believe that verizon, google, yahoo, facebook, and any other technology providers should also be required to delete our records after a period of time, lest they grow the seeds of something monstrous? Presumably, the databases the NSA is putting together already exist but distributed among various communications and internet companies. The potential to do all sorts of harm illegally, and keep it secret, is inherent in the existence of the technology.

      Reply
      • Maciej Ceglowski says:

        Yes, I believe that the current standard practice of recording everything and retaining it permanently is quite harmful, particularly as it affects young people. I outline my views a little more fully in these two posts:

        http://www.nytimes.com/roomfordebate/2012/12/11/privacy-and-the-apps-you-download/we-need-a-more-forgetful-internet

        http://blog.pinboard.in/2011/11/the_social_graph_is_neither/

        The problem with giant databases in private hands is less acute because corporations don’t have the coercive power of the state. But it’s still a big problem which will get worse with time given the nature of technical progress. I think we’ll end up strictly regulating both.

        Reply
        • Allan says:

          Agreed.

          “The problem with giant databases in private hands is less acute because corporations don’t have the coercive power of the state”

          Private financial companies certainly have some coercive power, and if we are going to make an apocalyptic argument, it is conceivable that corporations could gain much more power over time, even rivaling that of government. One could argue private corporations have already usurped some of the power of government, using public money to bailout private companies for example.

          Reply
          • David Simon says:

            If a government has a viable means of redress and it actually operates as representative of the people it governs — which is, after all, the republican premise of the United States — there is at least a premise of checks and balances. Corporations do what they want. And multinationals are increasingly indifferent to moral scope or suasion.

            The best thing you can say about a corporation is that its existential purpose is profit, and likely, they’ll see more money in using your information to sell you shit than to blackmail you. But if anyone figures out how to make a buck using metadata to hurt human beings, then human beings will be hurt.

            I’m not credulous on either front. But again, I think that we have three societal options here:

            1) Non-participation in the internet, cell phones, etc. Going off the grid. Extremely unlikely.
            2) Undo three decades or more of legal precedent that says metadata has no Fourth Amendment protection, which will require a political revolition of a kind that can radicalize the appointments to the U.S. Supreme Court. Unlikely as well, given that our governance is centrist and the fact that the government can argue actual investigative benefit to looking at people’s metadata to solve any category of crime — a fundamental societal benefit.
            3) Try to reform the secrecy of the FISA process and install some lasting rigor in the prohibitions against the government misuse of metadata, and punish misuse when it occurs. This is the shot to take, but it requires a different demeanor and campaign than has been demonstrated by civil liberties advocates in the wake of the Verizon court order leak.

            Reply
            • Other David says:

              “If a government has a viable means of redress and it actually operates as representative of the people it governs…”

              Fascinating. How does this apply to people who have no legal right to contest their no-fly list status or Gitmo detention due to secrecy? I think we are well beyond the point where the government pays attention to redress concerns.

              As far as your societal options:

              1) Ludditeism? Are you really suggesting this? You wrote “extremely unlikely”. I would say ‘impossible’.
              2) Most European countries have statutes protecting privacy. Why do we have to have a Constitutional crisis for this? This is common sense. Are your spooks gathering info that could embarrass your citizenry without probable cause? If yes, then don’t! Are your spooks doing something that would make your country ashamed? If yes, then don’t!
              3) Another option is to not interpret laws as to permitting general warrants. Yet another option is to install privacy protections similar to what are provided by most developed nations. There is a reason that Obama is being slammed in Germany and most of Europe right now. It is because his policies remind people of the Stasi. We can choose to be a surveillance state or not. It is our choice. And the correct answer is NO!

              Reply
              • David Simon says:

                “Fascinating. How does this apply to people who have no legal right to contest their no-fly list status or Gitmo detention due to secrecy? I think we are well beyond the point where the government pays attention to redress concerns.”

                Yes, fascinating. Reading comprehension in the U.S. must be at an all-time low. Please, before you post again, review everything going back to:

                1) My original post
                2) My subsequent reply to Maciej
                2a) My reply to Clay Shirky
                3) My exchange with Maciej in the commentary of that reply.
                4 other discussions throughout the site.

                Secrecy and the government’s reliance upon it to impair oversight and redress is, forgive the cap letters but you just aren’t focusing on what is actually being argued here, EXACTLY THE PLACE WHERE I THINK THIS FIGHT SHOULD BE OCCURRING. I keep saying so. Throughout. If you are still attempting to use secrecy as a critique in the hope of upending my own, there is a problem with reading comprehension here.

                As to societal options, of the three that I cited:

                1) No, of course I am not suggesting it. It is there, as an untenable option, to frame the inevitability of #3. In fact so is #2.
                2) Bullshit. Most Western democracies allow law enforcement the use of metadata, especially phone metadata, as a routine fundamental of police work. Wiretaps, DNRs, numbers dumps — funny how they have privacy guarantees, but they use this intrusion as well. Are they doing it for espionage purposes, as well? Well, we know the Brits, Russians and Chinese are. Any guess about the intelligence services of every other modern state? There is no constitutional crises here. The U.S. has long allowed access to phone metadata for domestic law enforcement, and for espionage and counter-espionage. That is scarcely inconsistent with the overseas reality. Guardian just outted the Brits and the Chinese have been caught fishing in American internet waters routinely. Russians are masters of electronic intercept capability throughout Europe. What are you claiming here? American exceptionalism? Not really.
                3) Yes, we can choose to be a surveillance state or not. But that choice is not made by denying metadata to counter-terror for use in proscribed and specific ways. I don’t know what general warrants means. If you are saying they should require warrants for phonedata, rather than court-ordered subpeonas, okay. That’s an argument to have. But as I have led the horses to this particular watering hole, let me say again, the fight is here, in option #3. Not in pretending that there isn’t a bondafide and legitimate use of phone metadata for societal goals such as crime suppression or counter-terror.

                Are you now arguing for the sake of it? Do you assess another’s arguments for what is actually being said and address that, or do you just continue on the same path as if it’s all talk and no listen? Because with regard to your first, sarcastic “fascinating,” such a suggestion seems legimitate. Based on all that has happened on this blog, you have no call to be fascinated, or sarcastic. I’ve been lamenting the overbearing secrecy in the FISA process and its need for reform for more than a week now. The “if” in my statement is purposed: If we can reform that aspect of our democracy, then the measured use of technology, and not its misuse, is subject to coherent and plausible self-governance. For you, at this late moment, seize upon it as “if” I an unaware of the need to address this, or that it isn’t in fact, my argument about where the fight should be, tells me that I’m wasting my time extending this discussion. You’re not actually paying attention anymore.

                Reply
                • Other David says:

                  I apologize for the way I phrased my reply. I was a prick. I admit that and I’m sorry. You are absolutely right on this and I make no qualifications to that. I was a jerk when I shouldn’t have been.

                  Nonetheless, despite how ill phrased I put it, I still think my points #2 & #3 stand (and yes, I have read every posting and post between Maciej and you). You are ignoring decades of international privacy laws for a US-centric viewpoint. Your examples of the privacy laws of the Brits, Russians and Chinese fall flat. I would never claim that they are good examples. In fact, if you look at Privacy International’s rankings, all of these countries (as well as the US) fall into the lowest tier of privacy protection. Focusing on the EU, in general, you will find that significant data protection laws were enacted in the early 1980s (including automated collection). The majority of the EU, with the obvious exception of the UK, have laws protecting privacy far beyond the US (even to the extent that Google Streetview needs to be designed to protect privacy in most of Europe). So yes, the majority of the developed world considers privacy to be a fundamental human right. But this isn’t just foreign law. Ten state constitutions now have privacy clauses. And as far as the developed world’s foreign surveillance abilities, this is irrelevant. Foreign intelligence is not, and should not, be designed to protect the privacy of foreign citizens. Nobody would ever expect that.

                  I worry that you might interpret the above paragraph as meaning that ‘legal’ intrusions on privacy are allowed. This is a catch-all argument that nobody can defend against (because it is obviously ‘legal’). Obviously there are laws everywhere that give the police and intelligence services certain rights to infringe on privacy for various purposes. The question, of course, is the breadth of the infringement. In most of the developed world, it is far, far less than what is being used in the US (which is basically everyone, everywhere, and anytime).

                  I also worry that you might dismiss this breadth argument with your expansion of scope argument (i.e. if it is okay in the projects, you are a hypocrite if you complain elsewhere). I’ll preemptively counter this by saying that the net violation of privacy matters and that previous violations don’t pave the way to future violations if they were unethical in the first place. This is a tricky argument, and easily dismissed, because all you have to do is cite decades of US privacy law and give examples of how metadata has been harvested at will (which you have done repeatedly). All that I can do is point out that privacy is a fundamental human right and that there are many aspects of the US legal system that have been incredibly inhumane and unethical over the past decades. The US legal system is not a good system to determine if we SHOULD do something, and it may now only be tangentially connected to ethics.

                  Finally, I would expect you to ask me to solve the problem (I read ahead). What should we do about surveillance, and what limits should we have? Should domestic metadata be mined? How should we exploit the incredible volume of data that is being sent and the changing trends of communications? My response is to do so openly. I know this isn’t what you want to hear, but it is what must be done. The public has a right to determine the appropriate privacy threshold without the government doing it secretly behind their backs. Will this cause criminals and terrorists to move to encrypted and non-interceptable communications? Probably. But at this point, the cat is out of the bag. Snowden ensured that. All that matters right now is how we act on our privacy concerns.

                  Note: general warrants, a/k/a writs of assistance. were warrants written without a suspect for the purpose of catching smugglers by the British in the 1700s. They gave the British almost unlimited authority to perform searches for smuggled goods and were one of the more loathed aspects of the Townshend Acts that led to the Revolution. I feel the current system is nearly equivalent because the NSA is doing nothing more than fishing for suspects. The Virginia Declaration of Rights explicitly forbid the use of general warrants and was the inspiration for the 4th Amendment.

                  Reply
                  • David Simon says:

                    No worries. Sarcasm gets away from all of us at points.

                    I understand that privacy is a right and that intrusions to such are, in fact, intrusions to such. The question here is not whether government access to metadata under certain conditions would be an intrusion into individual privacy. It is such, de facto. The question is whether the egal standards for such an intrusion are sufficient and whether the goverment makes a credible case for the need for such intrusion.

                    Privacy and security are both unattainable in any perfection in a society. Liberty cannot be total, nor can civic responsibility be predominant over individual liberty. These things are in legitimate conflict and all of them have value to a viable society and republic. All of what you are saying above is that you would draw the line well in advance of where the society has drawn it — not merely for purposes of this NSA datapile or the war on terror, but for other issues such as the drug war and basic criminal investigation. If you want to argue a higher standard for such an intrusion, well, that is a legal argument. If you want to argue against all intrusion, I don’t think you’re measuring anything other than personal liberty. If I were to say the government can use that data pile for things other than the counter-terror purpose for which it was proposed to the FISA court, I wouldn’t be measuring anything other than civic responsibility.

                    But I don’t think anyone is going to get very far arguing that metadata has Fourth Amendment protection. It doesn’t and it hasn’t. I think the better course is to set up very strict and specific policies — with judicial and congressional oversight — as to how the collected, non-specific metadata can be used and how it cannot be used. And I think doing so sets up something that is systemic and can be utilized for addition technologic advances going forward. And job one is to reduce the secrecy of the process, because absent that, no such oversight is credible or possible.

                    More simply, I wouldn’t draw the line where you would. But I agree there needs to be a line. And for enforcement of the standard, I agree that the secrecy must be breached to a far greater extent than currently.

                    Reply
                    • Other David says:

                      “All of what you are saying above is that you would draw the line well in advance of where the society has drawn it — not merely for purposes of this NSA datapile or the war on terror, but for other issues such as the drug war and basic criminal investigation.”

                      I think this is a critical question. I’m not going to respond to your statement directly because I think there are more important developments we must acknowledge. We are rapidly approaching the point where services like Tor (onion routing) and encrypted communications are going to make metadata collection and wiretapping impossible for important subjects. You can already go to the Silk Road marketplace and use Bitcoins to buy any drug that you want. Tor has hidden services where people can download child pornography. There are even Tor hidden services to buy illegal guns. And at this point, with the exception of the theoretical development of the quantum computer, these services will be untraceable.

                      The cat is out of the bag in two ways:
                      1) Criminals and terrorists know that the conventional internet is monitored, and
                      2) Criminals and terrorists have a convenient and extremely simple method to avoid the tracking (all you have to do is download the browser).

                      The tracking game is almost over. In perhaps five years, the only people the government will be able to track with metadata will be idiots and the general public. The same applies to more detailed communications (voice, internet content, etc.). All other arguments aside, we might as well draw the line at a convenient point right now. The only other option is to build in surveillance into every communication device conceivable (which would be subverted as easily as the Great Firewall). The government will be able to track certain purchases and the physical movement of materials, but it is pretty much “game over” for social tracking of people who don’t want to be tracked. We can argue civil liberties all night long, but the technology has moved far beyond that point.

                      You might ask: has it been tested? Yes, with Arab Spring. Against the NSA? To be determined…

                    • David Simon says:

                      Agree that there is every reason that the other side will adapt to whatever cat-and-mouse is in play. That’s the nature of the beast. Again, on a smaller scale in Baltimore, we’ve seen it with the adaptation of drug traffickers to monitoring of their communications. Why wouldn’t even the middle echelons of a terror organization learn and adapt as well.

                      But of course, I know you’re not suggesting that law enforcement should throw up its hands at such a possibility and abandon any proactive logic against terrorism. If that’s the case, the same logic calls for taking down the scanners and decommissioning the TSA. I mean, why bother, when somewhere, someone right now is perfecting the means to thwart the current level of terror suppression in air travel through the use and invention of new technology. And hey, if you can’t stop them from blowing up a plane, why bother? (The number of people logically citing the Boston bombings as an argument against proactive counter-terror programming is astonishing to me; a false-premise fallacy of the first order.)

                      Again, I’m extremely dubious when someone complains about the potential for misuse of technology — which I readily concede — and then concludes that it is therefore essential that the government eschew the technology on any terms. Really? In the crudest possible technological terms, the most vile invention of the last hundred years, save for perhaps the industrial-sized gas chamber and matched crematorium, would have to be atomic weaponry, and the hydrogen bomb specifically. The potential for the misuse of that technology is existential to the species, of course.

                      And yet, until we get to the point in human geopolitics wherein we can verify that other nation-states are nuclear-free, never mind stateless entities operating from within the borders of failed states globally, I’m not sure that the horror of nuclear weaponry alone is a credible argument for unilateral disarmament. We live in the world, and sometimes, sadly. the world can be a miserable fucking neighborhood. Would I like to see the United States adopt a public, no-first-strike with WMDs policy, effectively taking our offensive use of nuclear, biological or chemical weaponry off the table forever? Yes, I would. Strategically, I’m not sure first-strike capability with such weapons should even be implied at this late, post-Cold War date. But the maintenance of a U.S. deterrent? Inevitable at this point in human history.

                      But to the larger point: If I can recognize the terror of nuclear arsenals, and wish and pray for their verifiable abandonment by mankind in general, but still accept the daily inevitability of the United States and other nations maintaining a nuclear deterrent at present, then it’s understandable that I’m going to land in the same place with intelligence and counter-terror assets. After all, the stakes are smaller on all fronts. Now if the data-gathering is misused, then there is another argument — at the point of the misuse and the systemic failures that led to the abuse.

                    • Other David says:

                      Reply to David Simon post timestamped June 23, 2013 at 4:42 pm:

                      You see the technological anonymization advances as just another stage in the cat and mouse game. I don’t. My point wasn’t that this technology is another difficulty that police and intelligence services will have to adapt to, but that it is a fundamentally new way communications are transferred. The question isn’t whether intelligence services should abandon their current methods, but whether any method they could ever develop will ever be able to give any meaningful intelligence from people using this software. At some point, the only people that government mass monitoring surveillance will be able to track are idiots and the general public. The credible case is going to evaporate (if it hasn’t already). Case in point: the despicable Lolita City hidden service in Tor. If any government in the world had the capability to shut that down (and catch the 15,000 pedophiles), they would do it in a heartbeat. They can’t. The game has changed and the period where governments can run programs of mass Internet surveillance that will produce useful information may be coming to an end. And if that is the case, then we might as well enact strong privacy protections since we might not even lose any significant intelligence assets by doing so.

                    • David Simon says:

                      A fundamental of cryptology for all of its existence: Anything that can be encoded or hidden can be unencoded or exposed. Human communication is something that must be obtainable and discerned or it is not communication. If this is so, then there is always the potential for its interception. I have immediate and certain doubts when anyone tells me that something can’t ever be achieved technologically.

            • achilles3 says:

              Hell! I have read every post and EVERY comment and if this one doesn’t make things clear then a lot of you are TOTALLY just “engaging” for the hell of it.

              Just read, man!

              Reply
  28. Amy Goodwin says:

    When you don’t blog for a few days, I get afraid you’ve been locked up. Have you ever seen the film The Lives of Others? It’s about a surveillance analyst becoming over involved with a writer and his lover in East Germany. For all those running around like a chicken with their necks cut off…this will probably only make things worse. I did read the article you are referring to. His part about algorithms doing the work…that is pretty scary. Just the other day I noticed LinkedIn is now sending me articles on PRISM and China. Before it was card making and stamping.

    Reply
    • David Simon says:

      “The Lives Of Others” was a great, great film. Needs a rewatch now, in fact.

      I thought his article was cogent, serious and deserved a careful response. He has actually replied in these posts, and I honestly don’t think we are in notable opposition on many points. And I said so.

      Reply
      • Amy Goodwin says:

        I jest about being locked up, but historically writers are often the first targeted. If you or David Chase or Eric Roth were stifled, that would sound off the alarms for me, but that fear has crept in my mind. Watching “The Lives of Other People” is super important in my estimation because it gives people a picture of what surveillance is and how personal it can become. It does engage our worst fears. Is it a worthwhile endeavor to indulge our worst fears? I don’t know.

        Reply
        • David Simon says:

          Chomsky is the canary in the coal mine, no? They’ll start there. Until then, all the other scribblers can stay at the bar, ordering more rounds and waiting on residual checks as if it’s biz as usual.

          Reply
    • SocraticGadfly says:

      Amy: That’s why I use LinkedIn for NOTHING but job hunting. It’s not a blog, it’s not a social networking site, not for me, no matter how much SpammedIn tries to make it that.

      Reply
    • Golly says:

      “Hope dies last.” — from The Lives of Others

      Reply
  29. Sigmund Freud says:

    I get the feeling this would be more of a problem for you if the president wasn’t a certain skin color.

    Reply
  30. Whateley says:

    I have tried to keep up but I have now lost the plot. I need an Entertainment Weekly style episode guide.Something like…

    1) PILOT: Simon writes an impassioned defense of the NSA Verizon wiretaps; compares them to a Baltimore program twenty years ago. This reminds everyone of the Wire–man that was a good show. Snowden makes shocking disclosures about PRISM.

    2. SIMON SAYS WHAT?
    Bloggers erupt in stunned disbelief. Son of Simon calls reasoning “shaky”. Simon concedes maybe they have a point about this PRISM thing – he was just talking about phone calls. People conclude phew, maybe he has come around, its over

    3. ITS NOT OVER UNTIL I SAY ITS OVER Simon launches new blog platform. He has NOT come around. NSA plotline gets way more complicated. Maciej and Shirky disagree– can’t be good for Simon — those guys are smart..

    4. NOW THAT’S A FUCKING HEADLINE Simon leads with gratuitous use of the N-word: meta homage to Tarantino or new potential racism sub-plot? Simon suggests that somehow he will get paid for this content, in a rare turn towards comedy.

    CRITICAL REVIEW: Simon’s NSA commentary lacked impact, but structurally he setsa new standard in celebrity blogging. Responds cogently and respectfully to nearly every post, both intelligent and inane, and shutting down the conversation after 24 hours — well, it is a brilliant approach in about thirty different ways. Funny how genius just kind of seeps out into other things. GRADE: A

    Reply
    • David Simon says:

      Everything sounds better once EW gets to it.

      P.S. N-word not gratuitious, sorry. N-word the precise point there.

      Reply
      • Whateley says:

        Ha!

        I realize now that I had the chronology wrong (Ep. 3) — I went to your Home page and I mistakenly thought “Introduction” was your latest post. I am obviously not quite up to the standards of EW reportage.

        PS. Fair enough–it was just a throwaway set-up for a weak Tarantino joke.

        Reply
    • SocraticGadfly says:

      I agree with you, including on the gratuitous part. I think using “nigger” was of a tone with what I said on my first post, to make it look like nobody cared more than David Simon about the fallout of the War on Drugs.

      Actualy, better than Shirky, better than Maciej … has Morozov written anything about this? I think I’m going to Tweet him to jump in, if he would, just for the hell of it.

      Reply
      • Whateley says:

        I am one of those people who finds nearly all uses of the n-word gratuitous, especially in a headline.

        But In anecdotal contrast, my wife feels that pretty much all nudity on television is gratuitous. Which is to say that gratuitousness is a pretty subjective thing.

        But if the guy who created Snoop Pearson, Omar, Bunk and Bubbles tells me it isn’t a gratuitous use of the n-word, I’ll go with that. I think he get a free pass on pretty much everything related to race. Despite Simon’s admirable sentiment that content is everything here and all commenters have equal standing, i have a healthy respect for authority, especially when it is well deserved.

        Also i am stunned, really, by this whole site and approach–a hidden gem that can’t possibly last.

        Reply
  31. wildwoman says:

    This is very good, very helpful to one of we “small brain” persons. I think I begin to get a glimmer of what you are talking about.

    I’m not all that terrified of the revelations *so far*; it’s more the totality of the past few decades that scare the shit out of me. What the War on Drugs hasn’t done to the Constitution, the War on Terror sure is. No one has yet mentioned the NDAA, but sheeeit, when the President has the legal wherewithal to disappear you or kill you without due process…..well, that scares the crap out of me. Wasn’t Congress nice to give that power to the Executive? Where was the outrage on that? I’m so glad that Carl Levin isn’t running again. What a waste.

    Add to that mess the Supremes and their wisdom (Citizens United and now DNA) and knowing that it’s perfectly legal for some agent of the government to take your property away with no charges (forfeiture laws)…..you do see how some of us are taking our own measurements for the tinfoil hat, don’t you?

    Then add what at least some us consider a far more clear and present danger to the globe than “terrorism” (several agencies and various states have differing definitions of same) which is climate change, and seeing the government doing absolutely nothing about that, well, you start to wonder about what the endgame is on all of the data collection going on…..legally or no.

    So given that, I’m not all that convinced that reforming the FISA court is the answer. I would go to the barricades to push for it, to demand it (just as I do against GMO foods, with the same expectations for the outcome) but the Church reforms didn’t have any kind of long lasting impacts, did they? The NSA simply ignores the FISA court when they choose.

    The game is rigged. It seems to this little brain that since money is free speech, the game is even more rigged than it ever used to be.

    P.S. I got a jury summons and was so excited in anticipation of jury nullification, but alas!….we all got dismissed prior to voir dire.

    Reply
    • David Simon says:

      Agree that having a couple of the cranks on the U.S. Supreme Court give up their seats in the next couple years would help as well. Yes, the overall trend is appalling. All the more essential for systemic protections to be built into the system. The next president, or the one after, or whatever legal troglodyte follows Mr. Scalia into black robes is, perhaps, an inevitability. Would be nice if legislative remedies could ameliorate some of the excesses of the judicial and executive branches. Right now, no. Not so much.

      Reply
    • Joe Schaad says:

      The game _is_ rigged. That’s why I’ve always followed Marla Daniels’ advice: “The only way to win is not to play.” But that’s not an option for us now.

      Cutty: “Game done changed.”
      Slim Charles: “Game the same. Just got more fierce.”

      I side with the wise Mr. Wise.

      Reply
  32. J says:

    Thank you for this piece, lucid and provocative; I agree with you on your major points. Just a few points of my own. One, I haven’t read all of Mother Jones’ coverage of this story, but I have read Kevin Drum’s blog. He, at least, has not been amongst the knee-jerk liberals on this issue. He has asked incisive questions about the NSA program, and importantly, how much Snowden actually knows about it, that is, asking how credible of a source is he. Second, my concerns regarding the NSA data gathering have more to do with resource allocation. I don’t know the costs nor the man hours that are involved, but one has to wonder whether those resources would be better served elsewhere. The only difficulty with raising this issue is how you determine the value of such a program. The government has trotted out some fairly weak success stories, but do they justify the costs and attention? It’s like developing an unreliable test of a very rare disease for which no known test existed before. The number of successful cases will be small, but since the baseline is zero, isn’t that a good thing? Well, it depends upon comparing reality to a counterfactual world where the resources devoted to this test were spent elsewhere, and that is difficult to do. Nevertheless, we should be having this debate. But I agree with your broader point that this is a debate that is not limited to this piece of intelligence; it applies to our wider War on Terrorism and our War on Drugs. Third, and somewhat off the topic, you make a great point about marijuana legalization. As someone who had wholeheartedly embraced the movement, I have to rethink my position now. It would be somewhat strange to agree with a policy if it were packaged into a larger one, but disagree with it on its own, but that is the essence of realpolitik.

    Reply
    • David Simon says:

      You know? I went back and reread and realized you’re right, Mr. Drum’s column had no tone of betrayal. I had conflated it in memory with something else written elsewhere entirely. Thank you for pointing that out. Have corrected.

      Reply
  33. Adam Brodie says:

    Is there a link to be drawn here with the Vietnam draft, in terms of the relationship between popular outrage and the extent of a government program’s impact?

    Reply
    • David Simon says:

      There was, in fact, when I made the argument about marijuana legalization on the panel in the U.K. But here, this essay is long as it is.

      Another reader in these comments also made the connection between wars of choice and the marginalization of middle-class fears of a military draft. You are entirely on point.

      Reply
  34. Dana King says:

    Thanks for this. You got me thinking last week, and I was teetering; today you convinced me. This is due in no small part to a clearer understanding of where we agree, which is on the secrecy of the FISA courts. I have complained about this since I learned of it years ago as the prime source of potential abuse, and few seem to mind.

    I also have issues with drunk driving checkpoints where everyone is stopped, regardless of what the Supreme Court has ruled, and with “border patrol” checkpoints that require people to identify themselves as far as fifty miles from the border. “Probably cause” has been under assault for years, and only now are people up in arms, and over a program that gathers information for which we have no reasonable expectation of privacy, as the numbers dialed are, of necessity, maintained by the carriers.

    It’s a different argument, but i would love to hear your thoughts some day on DWI checkpoints and your thoughts on their Constitutionality, the Supreme Court notwithstanding.

    Reply
  35. mikedelic says:

    tv writers is ere anything they dont know lol

    Reply
  36. katie says:

    Mr. Simon,

    Still working my way through this meaty essay, but wanted to let you know that this this sums up what has shifted me over this week or two of discussion, I admit that I can be guilty of that well-intentioned but kind of clueless white liberal mentality. So, thank you for this POV.

    And if I sound exasperated with other liberal voices on this issue it’s because their barricades are in the wrong place, facing the wrong way, defending the wrong moral and legal terrain. Thus far, the sum of all liberal argument against the NSA program amounts to a veritable Maginot Line of legal ignorance, borrowed libertarian selfishness and, beyond that, a jaw-dropping obliviousness to the notion that those who fear a civil liberties apocalypse and wish to fight against such are decades late to the fields where battles actually rage. Shit, they’re still not in the right place.

    More to come, I’m sure.

    Thank you,
    Katie

    Reply
    • katie says:

      Finally finished reading this essay, and am filled with gratitude for you taking time to share your POV. The person to whom you are responding to as well.

      What bothers me, and isn’t your fault at all, is that people who really could really benefit from reading this won’t. Too many sound bytes and injection on our interpretations, not enough standing back and taking the time to consider something new. Too much 140 character reductionist communication. Too much people wanting to be spoon-fed simplified talking points.

      I continue to hope, though, that enough people have the patience and capacity for nuance and complication to keep this conversation going.

      But the exchange between you and Maciej is fantastic.

      Thanks again!

      Reply
  37. Other David says:

    I think your secrecy barricade would be grossly ineffective. You are basically creating the equivalent of a police civilian review board while allowing the Administration to continue to use secret policy statements to interpret laws, secret court rulings to establish precedents, and the state secrets privilege to shoot down annoying court cases (like no-fly list complaints). This is effectively creating secret laws. And the civilian review board will become indoctrinated to the culture and passive to complaints in the same way that police civilian review boards are. The only solution is to not have secret laws. This means that specific intelligence related to a case can remain classified, but the policy statements and court precedents need to be released, even if they tip off people about the potential ways intelligence may be collected. And the state secrets privilege needs to be restrained. If a citizen has a complaint, the government shouldn’t be able to say that they don’t have to respond to it because they can’t acknowledge the existence of a program. This is a clear violation of due process and the right to ask the government for redress of grievances.

    Reply
    • David Simon says:

      I’m also creating standards of disclosure of FISA activity to that board that don’t now exist.

      Reply
      • Other David says:

        I still don’t see how this would help. There is already a civilian review board: the US Congress. And there are Members who have expressed their displeasure at the programs that we currently have in vague terms but have been unable to discuss it with the public due to the secret classifications. How would an independent review board have more power than Congress when the Administration could determine what they can say about it? Would they issue a secret report that the President and Congress could easily ignore? Does this board already exist, and would that matter? And what does this do about the violation of due process with the use of the state secrets privilege?

        In the end, this review board would simply provide an excuse to maintain secret laws while providing yet another report to the Members of Congress who are cleared to read it. Like your view on the piecemeal legalization of marijuana, this is just a token measure that may cause a setback on the larger goal. The only way to protect against secret laws is to have no secret laws.

        Reply
        • David Simon says:

          Well, it argues for higher standards of authority for that oversight, and the release of information that the current oversight is not achieving.

          But hey, Other David, how’s about this:

          How about you acknowledge that the U.S. has, along with all other modern nation-states — some national security secrets, and that the FISA court, flawed as it is, exists because we used to do this stuff without any oversight whatsoever. And how about you further acknowledge that some secrets the government will not and cannot bring into open court because it would reveal national-security assets and methodologies.

          And then, how about you construct a workable dynamic between civil liberties and national security on surveillance and counter-terror issues. At least then, you’ll be engaged in arguing the real-world problem. Because I agree that the current system of oversight and legal interpretation is weak and unworkable. But go ahead, take a shot. Problem-solve.

          Reply
          • Other David says:

            Who says I don’t acknowledge that secrecy is important in national security matters? I served in the Navy and I held a Top Secret/SCI clearance. I understand that “loose lips sink ships”. What I have been arguing against is secret laws. And let’s not pretend that secret laws have been harmless in US history. You only have to look back as far as the Bybee Memo to refute that point. This would be one of those protected methodologies in your system where the Executive Branch gets to issue a secret policy statement that bends and twists an existing law to a new secret definition. Doesn’t it strike you as strange that the Executive and Judicial Branches can create secret laws but the Legislative Branch cannot? I mean, what are you arguing–that our laws are too dangerous not to be kept secret? Or, for the sake of consistency, that Congress should be able to write secret laws into a special section of US Code (which would probably actually simplify things and give more oversight)?

            Here’s the problem solving you asked for: the same thing I wrote in my first post. Maintain secrecy where it is appropriate, but do not create secret laws. This means releasing secret policy statements that interpret laws and releasing the parts of secret court cases that set precedent. Additionally, the state secrets privilege needs to be restrained. If you need to have secret court cases by proxy, so be it. But at least see that some sort of due process is afforded. It is a national embarrassment that a person can be put on a no-fly list but can’t challenge that in a court.

            Reply
            • David Simon says:

              I agree with you here. The actual decisions and interpretations by the FISA court, and all appellate logic these need to be available in total both the congressional intelligence committees and to an independent body that effectively represents civil liberties interests, albeit in a vetted panel within the FISA apparatus. Law school deans, civil liberties attorneys. Their public reporting can’t reveal methodology, but it needs to be consistent, independent and full-throated in its assessment of what is being done or not done legally and how laws are being interpreted, applied, used or misused. Nothing short of that can work. And even that will still be a battle. But it is certainly reform.

              Reply
  38. Sergio says:

    Wow. As if a lot of folks deeply disturbed by this Big Brother programs aren’t equally deeply disturbed with drug raids, police militarization, stop-and-frisk, DNA collection and other excesses.

    Look, scale does matter. If something becomes at some point technologically possible, it doesn’t mean it should be done. Nobody argues that we should go back to bow and arrows, but there are international conventions prohibiting certain weapons making it too easy to indiscriminately kill people en masse.

    And oh boy, the Baltimore argument. Drug dealers are not any dumber that terrorists, and they have much larger resources at their disposal. At least the big ones, that are really worth hunting for. I bet you anything, they change the burner phones as often as any al Qaeda in Yemen. So, could a cop get a Baltimore judge to allow him to collect *all* phone records of *all* Baltimore inhabitants for *indefinite* period of time and keep them *forever*, just in case? I don’t know, you tell me. Well, maybe these days he could. Times, they are changing.

    Reply
    • David Simon says:

      Then pursue the systemic solution. And don’t piss and moan about the one program that might ask you for your phone number while remaining tacet elsewhere. I’m saying put everything on the table. And address the inequity. A lot of people might be “disturbed” about the drug war, or DNA collection, etc. But most of that has, legally, gone on for more than three decades without so much as a political bump in the road.

      Don’t retroactively claim righteousness when this is the first barricade of this kind you want to man.

      And you missed the crux of the Baltimore analogy. It’s in the lag between the methodology of the datapile and just going back up on a celltower, as they could in Baltimore. The time required to reacquire the data from Verizon and a dozen other American carriers, reconstitute the data pile and begin the proactive hunt is longer than the shelf-life of a cellphone in either place. Bandwidth alone, on the carriers’ side of things. It’s an exigent circumstance. Nothing exigent about going back to the pre-existing celltower in Baltimore.

      Reply
      • Sergio says:

        The only systemic solution is limiting the government’s ability to perform such data sweeps. Which is kind of already written into the Constitution.

        We can speculate all we want about *potential* abuse, but there is an *immediate* negative impact — intimidation.

        “The CEO of the Associated Press told an audience Wednesday that the Department of Justice has succeeded in muzzling government employees from talking to AP reporters in the weeks since the seizure of AP phone records was revealed.” (http://www.buzzfeed.com/evanmcsan/ap-ceo-details-chilling-effect-after-dept-of-justice-seized)

        Just collecting “metadata”, you know, “the one program that might ask you for your phone number”.

        Think of what recent revelations about NSA’s continuous and truly global data sweeps can do (intentionally or not) to the free press and it’s sources. Is it just a side effect or the real goal? the latter is more likely, considering the combination of utmost secrecy combined with a little insight, both from the whistle blowers and the government itself. Plus, there is a lot of money to be made.

        Does it make us any safer? not a single plausible case, so far.

        Reply
        • David Simon says:

          Where in the Constitution? Not familiar with that language.

          Reply
          • ThatLucasGuy says:

            Amendment 4:
            The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, _and particularly describing the place to be searched, and the persons or things to be seized._

            Global data sweeps do not seem to be particularly described to me, or to have probable cause.

            Reply
            • David Simon says:

              your phone metadata — as well as all other data that you share with a third-party provider as part of a business contract — is not your person, papers, and effects. by all legal precedent going back decades. you don’t have exclusive possession of it or a right to its privacy under the Amendment you cite.

              I know you think it should be otherwise. But as there are not five more of you on the U.S. Supreme Court, you’re arguing from a lonely and untended reserve.

              Reply
              • Sergio says:

                But, David, “as well as other data that you share with a third-party provider as part of a business contract” covers pretty much everything we do. These days, everything ends up in the cloud and can be swept up in a jiffy. True, USPS scans each envelope, so there is a trace of every mail and every parcel somewhere in the system – and nobody complains about it. So the phone metadata is legally fair game too, fine.

                But what I was trying to convey, and as Ben Cohen already commented here, scale of surveillance *does matter*. A lot of things, undesirable in a free society, can be achieved if the government can (or even is able to create a *perception* it can) grab the whole country’s communication logs and freely look into selected communication contents.

                Which brings me to ask again: what do you think (specifically as ex-reporter) about the intimidating and muzzling effect of NSA’s global sweeps, coupled with the unprecedented government secrecy and prosecution of whistle blowers? If the journalists can’t (or there is a widespread perception they can’t) protect their sources anymore, what happens to our freedom of speech? and all other “freedoms we used to enjoy”? ((c) my favorite comedian, George Carlin)

                Reply
  39. Some Questions? says:

    What you say here–often eloquently, in my opinion with less of a shrill tone than has seemed to characterize some of the other posts–and at such length comes down to the following (in its most important dimensions):

    1.A. The use of these new technologies are as legal as they have long been.
    B. Because they have been legal already for such a long time, whatever you think about the Supreme Court jurisprudence about this, it is that much less likely that they are going to *revolutionize* that jurisprudence in some revolutionary way.
    C. That jurisprudence, moreover, may even just be flat out fine–as in it strikes the right balance between invading privacy by the use of technology and other general law enforcement ends that most would, presumably, find reasonable
    2. And as someone who is not a libertarian (of the Ayn Rand variety) nor a conservative, but a “lefty”/liberal of some kind, #1 guides my decision about what barricade I’d join.
    [3. Of course there is also a three--about the hypocrisy of middle and affluent class America--but I'm going to ignore it. Since, be that important truth as it may, using it here is a bit like if you were concerned about some country using napalm on some corner of suburban San Francisco, and then someone said to you "David, it is your Vietnam moment! Unless you think there is a world where countries are not going to be conducting war largely as they like rather than in conformity with moral human rightsy principles, well it should not come as a surprise that others might use against Americans what we've used against others in the past. So what right do you David, as an American, have to run around with your head cut off like a chicken about the use of that napalm?" Of course, you might not, in such a case, run around objecting. If so, then substitute whatever other name of a person who would. And I'm sure the analogy could be cleaned up, but, anyway, I'm going to ignore #3.]

    The question or series of related questions your post raises to me, however, is/are the following: where is all this energy being wasted on erecting barricades that someone with your particular view might or might not join? Where are all these chickens without their heads running around saying the sky is falling when it is not really? Is there any reason to so severely censure the public dialogue that has barely been emerging in the way you seem to have been? How else does a critical dialogue get going and get sustained? including one that might ever so faintly be audible enough to the Supreme Court that it might appropriately modify its jurisprudence to tinker with ‘the balance’ it must strike in a better rather than worse way (whenever it gets around to so tinkering)? who ever said that the Supreme Court is likely to **revolutionize** the jurisprudence on this? even being legalistic, is that the nature of how the Supreme Court gets pushed by the larger political climate to become responsive to democratic concern (regardless of whether in your opinion that concern is substantively misguided or not)? Are you saying that the Supreme Court is somehow immune from the general “hysteria” (concern?) of the public sphere? Are you saying that the way you think it (or any constitutional court anywhere) works is that its justices are so turned off by people being chickens without heads rather than narrowly focusing on a single FISA-based transparency argument that they will now balk at doing what they might have had the chickens just intelligently focused on the FISA issue and no more?

    Because, after all, your main point is not 1 or even 2 (above). It is not even conclusion #3. Rather, just as much has it been the further conclusion that there has been a kind of hysteria saturating society in general/or maybe, for you most importantly, the left. And that this is taking away from where energy could be better spent: on calling for more transparency, especially in the FISA process. You even suggest that the thrust of the public outcry thus far has maybe been *detrimental* b/c it has sapped away ‘credibility.’ From where I stand, at least, that is not remotely true. I don’t think we’d be having this conversation if not for Glenn Greenwald/_The Guardian_ reporting, Edward Snowden’s leaks, **and** the ensuing controversy. From where I stand, I seriously doubt that during the last three weeks, if not for Greenwald/Snowden/ ‘hysteria,’ that there was instead going to have been some great space in the intellectual culture to advocate for the more credibility-enhancing positions that you see yourself as favoring (which, could be the right ones on substance. but regardless, that hardly means to have expressed others is making for a loss of credibility or a form of hysteria). In a similar vein, just b/c Apple’s tax avoidance is totally legal and those rules are not going to change any time soon (and b/c there are even substantive economic arguments that are complex with respect to how to handle corporate taxation rates, espeically in a world where the standards are being harmonized downward), I doubt it would be plausible to suggest that all the hue and cry that seeped into the atmosphere for a few weeks made for wasted energies directed at prematurely building ‘barricades’ in the wrong spot. It wasn’t barricades being built. It was conversational space opening–for a brief moment (given the larger ideological culture). And I seriously doubt even more, that the lawmakers would have only taken that hue and cry seriously (to whatever extent they did and are ever going to) had the discussion occurred precisely in x fashion rather than y.

    But, sincerely, thanks for the restatement of your view. I’ve been wrangling with you a lot on this blog but have no ill will. The post was very eloquent, and in ways moving. And Points 1 and 2 are challenging ones and important to add to any conversation. (And apologies in advance for the length of the comment).

    Reply
  40. Mayson Lancaster says:

    Re marijuana legalisation: same thing happened to opposition to wars after the end of the draft.

    But another question: have you read, and watched, the USA Today interview with a trio of previous NSA whistleblowers? You really ought to, if you haven’t. Enough to raise my opinion of the paper by a couple notches.

    Reply
    • David Simon says:

      Indeed. I thought of that — and invoked the comparison during the discussion on the U.K. panel — but this post was long already.

      Reply
  41. Donald B. says:

    Glenn Greenwald lays out how the NSA is, indeed, listening to calls without a warrant or having to present probable cause, how the oversight for the program is a farce:

    http://www.guardian.co.uk/commentisfree/2013/jun/19/fisa-court-oversight-process-secrecy

    Reply
  42. Chris says:

    I am in general agreement with you about this. When the news broke about the Verizon metadata collection, I immediately thought of Season 1 of The Wire. This, combined with Orin Kerr’s take on this over at the Volokh Conspiracy pretty quickly convinced me that this was within the bounds of existing case law.

    The key there, though, is “existing case law.” That underlying case law was established, by and large, before cellphones, before text messaging, and before the internet. As we communicate more and more using these mechanisms, the volume and detail of this metadata has grown immensely. The balance that was struck between privacy and the needs of law enforcement in the days when “metadata” meant a pen register on a landline may not the the balance we want in an age of internet connected mobile devices.

    I put this in the same category as GPS tracking devices and automated license plate recognition. Technology has increased the amount of data and decreased the cost of gathering it. Perhaps to maintain the balance between privacy and the effectiveness of law enforcement, we need to increase the cost in some other way. I would not propose banning these techniques entirely, but perhaps rather than a court order issued on “specific and articulable facts” we ought to require a warrant supported by probable cause.

    Reply
  43. Chris says:

    “And this NSA datapile did not even begin to exist until 2006.”

    I don’t think that we actually know that for sure. What we know is that the NSA has been collecting this data pile using FISA court orders since 2006. I have seen some informed speculation that prior to 2006 the telcos were handing this data over voluntarily. Presumably after the previous round of NSA controversy, they asked for a court order as a CYA measure.

    Reply
  44. First Lt L Diablo says:

    Makes sense to me… Pretty fucking cogent shit. I’ll link to it on twitter for homme moyen

    Reply
  45. jordan g says:

    How do we know what the NSA is doing is good police work? Are we suppose to assume this? The whole process is a secret. The records are not publically available. There is no transparency.

    At least for a search warrent, one needs probable cause. The percentage of FISA court orders denied is estimated to be only 0.03% Either the people in the NSA are really good detectives or the approval process is a joke.

    I guess the same questions can be applied to traditional police work. However, given amount of widespread abuse these institutions commit, my default position is skepticism when they claim they need this data.

    Reply
  46. David Simon says:

    You’re getting into this late, aren’t you?

    No one is disputing the problem with the overwhelming secrecy of the FISA process. That is where I am arguing for reform.

    As to search warrants, again, you do not need a warrant to obtain phone metadata. Domestic law enforcement doesn’t need a warrant, neither does the NSA or FBI for counter-terror. Phone metadata has never been subject to Fourth Amendment protections. You need a warrant to wiretap telephonic communications, not to pull phone records or monitor a phone’s activity. That is just so. For that you need only a court order, which does not require the same level of evidentiary probable cause as a wiretap. That’s consistent between this NSA program and domestic casework.

    Reply

Trackbacks & Pingbacks

  1. [...] Schöpfer der Serie “The Wire”, David Simon, hat mehrere Blogposts zu PRISM geschrieben, die ob man ihnen nun zustimmt oder nicht, das Niveau der Diskussion um ein [...]

  2. [...] creator of Homicide, The Corner, and most famously, The Wire. Essentially a voice of the left, in his blog entry Simon made it clear how he feels about “libertarian selfishness,” in which [...]

  3. [...] the unfolding surveillance state and, as Gruber says, it’s a good one. David Simon, however, isn’t persuaded. He sees Ceglowski as missing the deeper issues and endangering the odds of reaching a sustainable [...]

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