We are shocked, shocked…

07 Jun
June 7, 2013

Is it just me or does the entire news media — as well as all the agitators and self-righteous bloviators on both sides of the aisle — not understand even the rudiments of electronic intercepts and the manner in which law enforcement actually uses such intercepts? It would seem so.

Because the national eruption over the rather inevitable and understandable collection of all raw data involving telephonic and internet traffic by Americans would suggest that much of our political commentariat, many of our news gatherers and a lot of average folk are entirely without a clue.

You would think that the government was listening in to the secrets of 200 million Americans from the reaction and the hyperbole being tossed about. And you would think that rather than a legal court order which is an inevitable consequence of legislation that we drafted and passed, something illegal had been discovered to the government’s shame.

Nope. Nothing of the kind. Though apparently, the U.K.’s Guardian, which broke this faux-scandal, is unrelenting in its desire to scale the heights of self-congratulatory hyperbole. Consider this from Glenn Greenwald, the author of the piece: “What this court order does that makes it so striking is that it’s not directed at any individual…it’s collecting the phone records of every single customer of Verizon business and finding out every single call they’ve made…it’s indiscriminate and it’s sweeping.”

Having labored as a police reporter in the days before the Patriot Act, I can assure all there has always been a stage before the wiretap, a preliminary process involving the capture, retention and analysis of raw data. It has been so for decades now in this country. The only thing new here, from a legal standpoint, is the scale on which the FBI and NSA are apparently attempting to cull anti-terrorism leads from that data. But the legal and moral principles? Same old stuff.

Allow for a comparable example, dating to the early 1980s in a place called Baltimore, Maryland.

There, city detectives once began to suspect that major traffickers were using a combination of public pay phones and digital pagers to communicate their business. And they took their suspicions to a judge and obtained court orders — not to monitor any particular suspect, but to instead cull the dialed numbers from the thousands and thousands of calls made to and from certain city pay phones.

Think about it. There is certainly a public expectation of privacy when you pick up a pay phone on the streets of Baltimore, is there not? And certainly, the detectives knew that many, many Baltimoreans were using those pay phones for legitimate telephonic communication. Yet, a city judge had no problem allowing them to place dialed-number recorders on as many pay phones as they felt the need to monitor, knowing that every single number dialed to or from those phones would be captured. So authorized, detectives gleaned the numbers of digital pagers and they began monitoring the incoming digitized numbers on those pagers — even though they had yet to learn to whom those pagers belonged. The judges were okay with that, too, and signed another order allowing the suspect pagers to be “cloned” by detectives, even though in some cases the suspect in possession of the pager was not yet positively identified.

All of that — even in the less fevered, pre-Patriot Act days of yore — was entirely legal. Why?

Because they aren’t listening to the calls.

It’s at that point, people, that law enforcement requires a full-throated argument of probable cause. It’s at that point that privacy rights must be seriously measured against the legitimate investigate needs of law enforcement. And it’s at that point that the potential for authoritarian overreach becomes significant.

I know it’s big and scary that the government wants a data base of all phone calls. And it’s scary that they’re paying attention to the internet. And it’s scary that your cell phones have GPS installed. And it’s scary, too, that the little box that lets you go through the short toll lane on I-95 lets someone, somewhere know that you are on the move. Privacy is in decline around the world, largely because technology and big data have matured to the point where it is easy to create a net that monitors many daily interactions. Sometimes the data is valuable for commerce — witness those facebook ads for Italian shoes that my wife must endure — and sometimes for law enforcement and national security. But be honest, most of us are grudging participants in this dynamic. We want the cell phones. We like the internet. We don’t want to sit in the slow lane at the Harbor Tunnel toll plaza.

The question is not should the resulting data exist. It does. And it forever will, to a greater and greater extent. And therefore, the present-day question can’t seriously be this: Should law enforcement in the legitimate pursuit of criminal activity pretend that such data does not exist. The question is more fundamental: Is government accessing the data for the legitimate public safety needs of the society, or are they accessing it in ways that abuse individual liberties and violate personal privacy — and in a manner that is unsupervised.

And to that, the Guardian and those who are wailing jeremiads about this pretend-discovery of U.S. big data collection are noticeably silent. We don’t know of any actual abuse. No known illegal wiretaps, no indications of FISA-court approved intercepts of innocent Americans that occurred because weak probable cause was acceptable. Mark you, that stuff may be happening. As happens the case with all law enforcement capability, it will certainly happen at some point, if it hasn’t already. Any data asset that can be properly and legally invoked, can also be misused — particularly without careful oversight. But that of course has always been the case with electronic surveillance of any kind.

Keep in mind that the FISA court was created as a means of having some definitive oversight into a world that previously had been entirely unregulated, and wiretapping abuses by the U.S. executive branch and by law enforcement agencies were in fact the raison d’etre for the creation of FISA and a federal panel of judges to review national security requests for electronic surveillance. Is it perfect? Of course not. Is it problematic that the court’s rulings are not public? Surely.

But the fact remains that for at least the last two presidential administrations, this kind of data collection has been a baseline logic of an American anti-terrorism effort that is effectively asked to find the needles before they are planted into haystacks, to prevent even such modest, grass-rooted conspiracies as the Boston Marathon Bombing before they occur.

So think for a minute about a scenario in which, say, a phone number is identified overseas as being linked to terror activity. It is so identified by, say, NSA overseas intercepts or through intelligence gathering by the CIA or the military. And say that there exists a database of billions and billions of telephonic contacts in the United States over a period of months or years. And say a computer could then run the suspect number through that data base and determine a pattern of communication between that overseas phone and several individuals in New York, or Boston, or Detroit. Would you want that connection to be made and made quickly? Or do you want to leave law enforcement to begin trying to acquire the call history on that initial phone from overseas carriers who may or may not maintain detailed retroactive call data or be unwilling to even provide that data fully to American law enforcement or do so without revealing the investigative effort to the targets themselves?

Keep in mind that law enforcement must still establish probable cause to then begin to actually monitor conversations on the domestic numbers, and that this request for electronic surveillance is then, of course, subject to judicial review by the FISA court.

Yes, I can hear the panicked libertarians and liberals and Obama-haters wailing in rare unison: But what about all the innocent Americans caught up in this voracious, overreaching dragnet? To which the answer is obvious if you think about the scale of this: What dragnet?

Your son’s devotional calls to 1-900-BEATOFF? Your daughter’s call from the STD clinic? Your brother-in-law calling you from his office at Goldman with that whispered insider-tip on that biomed stock? Is that what you’re worried about?

Take a deep breath and think:

When the government grabs the raw data from thousands of phone calls, they’re probably going to examine those calls. They’re going to look to establish a pattern of behavior to justify more investigation and ultimately, if they can, elevate their surveillance to actual monitoring of conversations. Sure enough.

When the government grabs every single fucking telephone call made from the United States over a period of months and years, it is not a prelude to monitoring anything in particular. Why not? Because that is tens of billions of phone calls and for the love of god, how many agents do you think the FBI has? How many computer-runs do you think the NSA can do — and then specifically analyze and assess each result? When the government asks for something, it is notable to wonder what they are seeking and for what purpose. When they ask for everything, it is not for specific snooping or violations of civil rights, but rather a data base that is being maintained as an investigative tool.

There are reasons to object to governmental overreach in the name of law enforcement and anti-terrorism. And it is certainly problematic that our national security apparatus demands a judicial review of our law enforcement activity behind closed doors, but again, FISA is a basic improvement on the preceding vacuum it replaced. Certainly — and I find myself in rare agreement with the Rand Pauls of the world on this one — we might be more incensed at the notion of an American executive branch firing missles at U.S. citizens and killing them without the benefit of even an in absentia legal proceeding. Or ashamed at a racially-targeted sentencing guideline that subjects rock cocaine users to seventeen times the penalty of powdered-cocaine users? Or aghast at a civil forfeiture logic that allows government to seize private property and then requires citizens to prove a negative — that it was not purchased with money from ill-gotten gains.

There is a lot of authoritarian overreach in American society, both from the drug war and the war on terror.

But those planes really did hit those buildings. And that bomb did indeed blow up at the finish line of the Boston marathon. And we really are in a continuing, low-intensity, high-risk conflict with a diffuse, committed and ideologically-motivated enemy. And for a moment, just imagine how much bloviating would be wafting across our political spectrum if, in the wake of an incident of domestic terrorism, an American president and his administration had failed to take full advantage of the existing telephonic data to do what is possible to find those needles in the haystacks. After all, we as a people, through our elected representatives, drafted and passed FISA and the Patriot Act and what has been done here, with Verizon and assuredly with other carriers, is possible under that legislation. Indeed, one Republican author of the law, who was quoted as saying he didn’t think the Patriot Act would be so used, has, in this frantic little moment of national overstatement, revealed himself to be either a political coward or an incompetent legislator. He asked for this. We asked for this. We did so because we measured the reach and possible overreach of law enforcement against the risks of terrorism and made a conscious choice.

Frankly, I’m a bit amazed that the NSA and FBI have their shit together enough to be consistently doing what they should be doing with the vast big-data stream of electronic communication. For us, now — years into this war-footing and this legal dynamic — to loudly proclaim our indignation at the maintenance of an essential and comprehensive investigative database while at the same time insisting on a proactive response to the inevitable attempts at terrorism is as childish as it is obtuse. We want cake, we want to eat it, and we want to stay skinny and never puke up a thing. Of course we do.

When the Guardian, or the Washington Post or the New York Times editorial board — which displayed an astonishing ignorance of the realities of modern electronic surveillance in its quick, shallow wade into this non-controversy — are able to cite the misuse of the data for reasons other than the interception of terrorist communication, or to show that Americans actually had their communications monitored without sufficient probable cause and judicial review and approval of that monitoring, then we will have ourselves a nice, workable scandal. It can certainly happen, and given that the tension between national security and privacy is certain and constant, it probably will happen at points. And in fairness, having the FISA courts rulings so hidden from citizen review, makes even the discovery of such misuse problematic. The internal review of that court’s rulings needs to be somehow aggressive and independent, while still preserving national security secrets. That’s very tricky.

But this? Please. This is bullshit.

In Baltimore thirty years ago, after the detectives figured out which pay phones were dialing pagers, and then did all the requisite background checks and surveillance to identify the drug suspects, they finally went to a judge and asked for a wiretap on several pay phones. The judge looked at the police work and said, okay, you can record calls off those public pay phones, but only if you have someone watching the phones to ensure that your suspects are making the calls and not ordinary citizens. And if you make a mistake and record a non-drug-involved call, you will of course “minimize” the call and cease recording.

It was at that point — and not at the earlier stage of gathering thousands and thousands of dialed numbers and times of call — that the greatest balance was sought between investigative need and privacy rights. And in Baltimore, that wiretap case was made and the defendants caught and convicted, the case upheld on appeal. Here, too, the Verizon data corresponds to the sheets and sheets of printouts of calls from the Baltimore pay phones, obtainable with a court order and without any demonstration of probable cause against any specific individual. To get that far as a law-abiding investigator, you didn’t need to know a target, only that the electronic medium is being used for telephonic communication that is both illegal and legal. It’s at the point of actually identifying specific targets and then seeking to listen to the conversations of those targets that the rubber really hits the road.

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  1. webmistress says:

    After 48 hours the substance of the debate has become largely repetitive and having given a couple days to responding directly, we’re going to close comments on this post. If you had an argument to pursue you will likely find it addressed — from all points of view — somewhere below.

  2. Ann Godridge says:

    For me the issue is not one of privacy primarily. The issue is more pragmatic and a bigger problem than most people realise. It is the danger of false positives – that is always the problem with analysing really large chunks of data. That means than innocent people will come under suspicion. It may affect travel, it may affect job opportunities, and in the worst cases it may result in unsubstantiated charges.

    More than that, it means there is lot more work for the security services to do, with many more people being monitored than is necessary. I suspect it is already happening – you must have noticed how many times in recent years it has turned out that actual terrorists were supposed to be being monitored? The Boston marathon bombers, for example. So what happens is that there is information overload, and time is wasted monitoring so many false positives, that the real bad guys are getting away with it.

    • David Simon says:

      You know, I had closed comments on this post, if only to preserve the back-and-forth as it occurred for the two days after the original posting. I couldn’t keep up with the largely repetitive arguments and I wanted the argumentative dynamic to remain apparent and readable. The webmistress posted atop the comments.

      But your comment is fresh and entirely astute. I worry about that, too. Garbage in, garbage out. And the appearance of Mr. Snowden on the national stage compounds any sensate person’s worry about this data being subject to the least reliable or focused subcontractor. Yes, the computer run is the easy part. It’s the police work that follows that needs to be functional and competent.

      But that’s always the reality, isn’t it? Hard to say let’s acquire less intelligence because we can’t deal with it probably. No bad investigation happens if this data isn’t available, true. No good investigation, either. That’s the rub.

      Thank you for writing.

  3. Martha P Nochimson says:

    David Simon,
    I have never seen anyone engage in the kind of dialogue about an online posting in the way that you have here; hats off to you. You have set a wonderfully high bar for Internet discussion, regarding both substance and civility. A great pleasure for me to read.

    I am a film and media critic, a former college professor, who has published many articles and just had the pleasure of seeing the University of Texas Press published my sixth book, David Lynch Swerves: Uncertainty From Lost Highway to Inland Empire. (My second book on Lynch, informed by 20 years of conversations with him.) I am about to begin work on a new book for the University of Texas Press about the revolution in the American television series, of which The Wire and Treme are important parts. Would you be willing to contact me with an eye toward some conversation? My e-mail is noenda@optonline.net If you are interested in seeing my track record, please check my website http://www.marthapnochimson.com

  4. Carl says:

    You ‘re using the term “raw data” as if it has little to do with the actual content of Internet traffic. I am not a protocol analysis expert, but I am a long-time Information Technology infrastructure worker and I’ve captured packets repeatedly. Network (or Internet) traffic is just your content (e-mail, photos, Facebook posts, Intenet downloads, etc.) broken down into tiny little parts, called packets. If you pull a copy of those packets off the network as they pass, it is trivial to reassemble them into the actual content. Software to capture and reassemble packets on a small scale is freely available. I think we can safely assume that the NSA can do this at scale.

    I’d encourage you to verify what I’m telling you. Don’t take my word for it. Go talk to a network engineer or protocol analyst. If we’re talking about capturing Internet traffic, there is effectively no difference between “raw data” and actual content.

    Let’s have a discussion about what’s actually happening instead of obscuring the issue behind terms like “raw data” that inaccurately describe what’s being done, again assuming the NSA is capturing all network traffic.

    • David Simon says:

      Look elsewhere in the commentary. I am aware that content is available for capture from the internet with far less expectation of personal privacy. And distinctions have been made with regard to the difference between the legal standard for telephonic intercepts and what is possible with PRISM. And I’ve spoken to that. But thank you. If I used the term raw data, I simply meant, “the actual content.” Meaning not the internet equivalent of a call history.

  5. BK says:

    Should counterterrorism not be held in perspective? Illegal drug overdose kills hundreds of times more Americans than the number of people killed in terrorist attacks. Should NSA style tactics be employed to further prosecute this draconian drug war? Instead of limiting police to the wiretaps you alluded to, why not collect America’s collective metadata to track and identify drug smugglers and dealers? If harm reduction is the goal and the data is available for use towards a legitimate law enforcement purpose, then why not apply this logic to activities that are the most dangerous to the most people? More Americans die from gang and mafia violence than terrorism. The metadata sweep could be used to identify and track the gun runners operating on the East Coast. As voice recognition technology improves and the data is filtered more efficiently, I do not see where this behavior ends. If the data is available and can be used towards a legitimate police purpose, might it be reasonable for every police department to have a database covering every resident within its jurisdiction?

    The racial component of the drug war has perverted that war’s execution and implementation. Does the war on terror not suffer the same built in bigotry and biases that are fueling its execution? This NSA program has all of the profiling/harassment capabilities and abuse potential as anything dreamt up for the war on drugs. In fact, as we know from past Patriot Act investigations, these counterterrorism programs are often used in furtherance of the drug war more than their original intention.

    Why lose our collective shit over terrorism when the US has handled far more dangerous actors and activities in the past without resorting to creepy, big brother tactics? If these NSA tactics are road Americans choose to go down, then let’s apply this program to all crime and not carve out special exceptions for a relatively less destructive threat being posed by Muslim bogeymen.

  6. Roger says:

    So, the Baltimore police get some dragnet type search court orders against racketeering from a friendly judge(s), knowing that there would be no one to oppose them, and you think this proves exactly what?

    Then you argue that “…no indications of FISA-court approved intercepts of innocent Americans that occurred because weak probable cause was acceptable.” How could there be? FISA is secret; the investigations are secret; neither the investigated, nor government nor private lawyers or others invilved are not allowed to make the orders or results public; etc. And you don’t know all that? Yeah, right.

    And on and on your sophistry goes…

    If you want to support what the government is doing, say so directly. As it stands, though, your piece is as dishonest a piece of writing as one will come across.

    • David Simon says:

      Calm down. Really.

      The analogy is what it says. The case is indicative of what was legally possible twenty years ago. If you are unconvinced merely say so.
      Next, if you’ve read carefully you know that I’ve saved my criticism not for this data dump, which I do indeed support, but for the all-enveloping secrecy that prevents proper civilian oversight of the FISA court. Not only in the essay but throughout these comments. I have not ignored that fundamental but addressed it repeatedly. So, sophistry is a rather unsupported term in that regard.

      And with regard to the Verizon data, I do support what the government is doing. Did you not read the essay.

      I hope this is honest enough for you. It might be disagreeable to your point of view, but I can be no more direct about what I believe.

  7. Brian F says:

    I usually agree with you fully on just about everything you have written about here, but this is not one of them. I see major differences between your Baltimore scenario and this. Firstly, the nature of spying vs. police work, the first being to ostensibly prevent crime/terrorism and the second being to catch a criminal once we are pretty sure a crime has happened. The needs are then very different, ongoing surveillance vs info needed for a particular case. The second is obviously the scope. ‘People using payphones in Baltimore for the period of the investiagtion’ is obviously a much smaller group than ‘anyone using a cell phone/social media site in America from here to eternity’. It’s the ongoing and blanket nature of the surveillance that I think has many people concerned. Next, I’m not sure why you appear to be trusting the very same people at their word regarding the scope of PRISM who were hiding this program in the first place. I am right with you in a complete lack of surprise that this was going on after the Patriot act but the reality here is a little jolting.

  8. Chris says:

    We are laying the groundwork for what I have heard others call turn-key totalitarianism. While we may trust the current, previous, or next administration, history is fraught with individuals capable of terrible deeds. One day such an individual will inevitably find their way into a position of power and we will have given them all the requisite tools necessary to engage in any abuse one can imagine. Anyone who might find this claim alarmist I would encourage to quickly skim their average high school World History text. The only safeguard against a tyrant such as this is the light of day, which would include the press and public. This ingredient has been entirely absent from this process, given that until two days ago none of us were even aware that we should be engaging in this very debate. That was obviously naive on the part of many of us.

    Mr.Simons, you argue that no indications of abuse have come to light. How could you, or anyone who didn’t know of this program prior to this week possibly claim this? These programs by there very design prevent discovery of such a case. Why would cases of abuse have come to light? How can we in the press and public safegaurd against abuse from entities which we are entirely unaware?

    • David Simon says:

      Yes, I’ve been very clear that the FISA-court and the results of its orders needs to be subject to independent and consistent review and oversight, regardless of the national security issues. That’s in the original essay and throughout the comments. This level of secrecy is unsustainable for a democracy.

      We can’t know if abuses are occurring. Just as we can’t know if the functional use of the data is advancing anti-terror investigations. All that we do know is that evidence hasn’t yet surfaced of Americans who have had their civil liberties impaired or who are being targeted using the data. That is me simply stating what is known, and arguing that it is at the point that such evidence surfaces that such misuse should be aggressively addressed. Until then, I do find that there is a credible use for that data in terms of monitoring terror suspects and establishing connections between those suspects.

  9. Michael Cromer says:

    You know what scares me? David Simon scares me.

    Boil this post down to its essence and you have the something that reads very much like the Intelligence community’s secret misinterpretation of the Patriot Act and the US Constitution.

    Simon writes good TV shows. He does not write good public policy.

  10. Geoff Buchan says:

    Simon’s big point is that there’s a big difference between content and metadata, leaving the impression that he believes the outrage would be justified if the government were sweeping up content and not just metadata.

    Well, the day after the Verizon piece ran, Glenn Greenwald wrote about the NSA’s PRISM program, “… which allows officials to collect material including search history, the content of emails, file transfers and live chats … ”
    http://www.guardian.co.uk/world/2013/jun/06/us-tech-giants-nsa-data

    While this piece hasn’t gotten the attention of the phone data sweep, this raises far more serious privacy concerns, since here the government is getting the actual content, the equivalent of the audio call data.

    • David Simon says:

      PRISM has been discussed elsewhere in the comments.

      And yes, the internet does not have the same legal protections accorded to telephonic communication. That is an argument for creating those protections, at least with record to personal emails and person-to-person traffic. But right now, anyone posting on the internet needs to know that they have far less expectation of privacy, legally, than if they talk on a telephone.

      Consider those issues on separate tracks. If it were up to me, I would like to see internet traffic accorded the same privacy under the law as phones. Right now, PRISM is operating to a greater degree within the open-range of public domain. Or closer to that than ought to be the case. But right now, it is street legal.

  11. Eric says:

    David,

    Thanks for the analysis. It’s total madness that we trust companies like Facebook and Google–entities with next to zero accountability or meaningful oversight–with our data, not even knowing what they are doing with it, yet freak out when the government, something that we can theoretically control, uses data for a specific and targeted purpose.

    Sure we caught the government with its hand in the cookie jar (even though it went through the lawful procedures for accessing the cookies) yet nobody is seriously questioning the wisdom and motives of the companies who made those cookies in the first place–confections we willingly provided the ingredients for. Maybe its time to question this. Maybe not the slow lane at the Harbor Tunnel, but duckduckgo for internet searches? Count me in.

  12. David Chase says:

    I’m unpersuaded for two reasons. First, scale matters. All pay phones in Baltimore is one thing, all phones in Maryland is something more, and all phones all over the US is even more. This is not a one-time catch-the-drug-dealers scan, this is an ongoing search for hypothetical terrorists. And, since the days of the pay-phone scan, our ability to scan, sift, and organize has increased enormously. Once-upon-a-time our privacy was protected by the work required to violate it. No more.

    Second, and this goes back to the laws passed that enabled this, the whole thing is frightened-bunny-innumeracy. Since 2000, terrorists have killed about 3000 people in this country. Falling out of trees has killed fewer, falling out of beds has killed more, yet no war on beds, no war on slippery tubs and showers, no war on stairs. Every single year, people driving cars kill that many pedestrians, yet we do not declare a war on cars, and in fact there’s a vigorous movement to resist various automated traffic enforcement efforts that might put a dent in this. Medical errors kill many more times that, yet we are slow to declare any sort of a war on medical errors (should we have scanners for MRSA and C diff? Should we ban people running fevers from airplanes?). We tolerate or address numerous risks far more deadly than terrorism without upending our civil rights.

    • David Simon says:

      Addressed these concerns in other answers here — particularly the fact that the scope of the conspiracy is relevant to the scope of the attempted intercept obviously — but the difference of opinion is certainly valid.

      That said, if you The Man, the Sopranos pwns.

      • David Chase, but not that one says:

        There are many of us (2 at my doctor, 3 at my employer). I will never work in television again, but I never did.

  13. cjs says:

    Thank you. Your analysis is clear and factual. You have also stated what you value and why. This gives contrast to the commentors who are also stating what their values are; and an unfortunate contrast to those who are mistaking their values for facts.

    You have helped me clarify my thinking, and in a democracy, that’s virtually priceless.

    I’m sure this enterprise is an enormous time-suck for you, so I appreciate all the hard work you do to make it what it is. I hope you are somehow being well-paid for your work (whatever “well-paid” is for you).

  14. Katie says:

    Thanks for your time and patience, Mr Simon. No doubt you had better things to do this weekend, but you have provided an excellent example of how an Internet debate on contoversial issues can be productive and relevant. Despite the name calling and ridiculous projections, you stayed on point and focused. This is not only the conversation we need to have, but also the way we need to be having it.

    With gratitude,
    Katie.

    • David Simon says:

      There wasn’t a lot of name calling. There was much more good debate this time around.

      And based on distinctions made clear to me right off the bat by some of those I was arguing with, I’ve come around on the matter of PRISM and the internet. The basic safeguards that exist for telephonic communication don’t yet exist for internet communication, and they should. At least for interpersonal emails and such, if not for posts to more public sites. No one should have much expectation of privacy on the internet, but given the role of e-communication in the modern world, that certainly needs to change in certain aspects. And therefore, unlike my opinion about this Verizon court order, the PRISM program, while legal, argues for corresponding safeguards, sooner rather than later.

      As I always like to believe, a good argument makes everyone think a little better. Or pisses everyone off. One of the two.

  15. Roman Craner says:

    Absolutely on the mark. I have been waiting for several days now to have someone make the a substantive counter-point to self-righteous media getting on this band wagon. They do not have the courtesy and the courage to correct their actual errors in their stories let alone faulty analysis.

  16. James says:

    This is a thoughtful and courageous essay, in the midst of all this hysteria. Thanks for the reality check.

  17. Dr,H says:

    David Simon is not only one of the best writers alive, but arguably the most intelligent voice on the internet(that ain’t saying much). Is there anyone’s commentary as intelligent as Mr. Simon’s?

    • David Simon says:

      Some of the people I’m debating here are extremely knowledgeable and certainly as intelligent. This site is becoming what I hoped it might be at moments like this.

  18. Cumberland 6142 says:

    Maybe its always been like this, but the greater social context is radically different. And to be even handed, there’s for sure an element of all this surveillance being blow back from the first 20 years of the internet. In which you could do say and view most anything, anonymously. Or sack and pillage the music industry into a new kind of obsolescence.
    I imagine it must have been terrifying to watch from from your seat of power.
    Maybe this degree of observation and record keeping would be a lot easier to accept if it weren’t in the hands of a government that only just lost its shyness about conducting corrupt practices in broad daylight in the last dozen years.
    Maybe if it weren’t peddled as anti-terrorism except the legislation omits the clause that says it can ONLY be used for terrorist investigation. Instead its used for whatever, like geopositioning the boston bomber kids at a murder 18 mos before they got famous, whenever and however the “authorities” decide.
    Some constituional amendments could fix this imbalance easily, and perhaps make it much harder for ANYONE and EVERYONE to break the law. Imagine that.

  19. Robert P says:

    David, what is your response to William Binney? He was at NSA from 1970 until 2001. He developed many of the key automated signals intelligence systems along with NSA research chief Dr. John Taggart. He was a major cryptanalyst and one of the key developers of SIGINT methods within the NSA.

    He identifies as a whistle-blower today and strongly disagrees with your assertion that the NSA database is aimed at counter-terrorism efforts. In a recent interview for Wired he made it clear that the NSA’s efforts are squarely aimed at US Citizens, that FISA was regularly ignored and warrant-less interception of data was the norm, and that the Utah Data Center that is under construction is specifically intended to be a permanent storage database of domestic information. The notion that oversight is possible, especially by courts and government officials who don’t have immediate access to the intercept systems, is highly dubious.

    He also blew the whistle on Stellar Wind/RAGTIME-P, which Greenwald and the media haven’t pick up on yet but is yet another dimension to the ECHELON, PRISM framework.

    I’m sorry, but I’m very skeptical of your assertions that this program can be regulated and overseen in any real way, and that it is aimed at counter-terrorism efforts, when one of the chief architects of the system and one of the key SIGINT researchers of the past century says you couldn’t be farther from the truth.

    Let’s roll with the counter-terrorism angle though … Are you aware that the Emirate of Qatar and Saudi Arabia are currently funneling NATO-standard weapons systems to the Al-Nusra Front in Syria? Do you seriously believe that the US is unaware of this, when Qatar is a de facto US client state with multiple US military bases within their borders? Al-Nusra is allied with Al-Qaeda and the Islamic Emirate of Iraq. Are you aware that, as per Seymour Hersh of the New Yorker, the Bush administration brought the MEK (a terrorist group, as per State Dept guidelines and US court decision) to Nevada to train them for anti-Iran operations? Are you aware that the US provided considerable amounts of money to the February 17th Martyr’s Brigade in Libya, as part of their efforts to topple Qaddafi, and this same Martyr’s Brigade was then complicit in the Benghazi attack?

    Maybe the next time Dianne Feinstein and John McCain are providing the Al-Nusra Front with ground-to-air RPG systems they can politely ask them to relay the message to Ayman Al-Zawahiri to stop terrorist attacks against the US, thus negating the need for this program?

    • David Simon says:

      I’ve read Binney’s commentary. It is indeed worrying.

      I am awaiting the moment that it is revealed that any of the NSA’s data-gathering has been used to impair the civil rights of Americans in actual practice. It is at that point that I not only think it will be rightful to call the government to account, but also, politically, it will be the practical time to achieve whatever restrains can be achieved. That is the history, for example, of the Church Commission.

      But right now, looking at that court order, and the value of that data in terms of a specific counter-terrorism task, I am not inclined to hold Binney or other whistleblowers up and deny that material. Two things can be true here. The NSA can be capable of violating our civil rights and that data also has a relevant purpose for counter terror. Right now, reading about the FISA court order, I am addressing the latter. When someone makes clear exactly where the NSA, or the FBI, or the DOJ has overreached into our civil liberties, I will address the former.

      I wholly expect that the former will require address by all of us at various points. This administration has overstepped in many ways already. But that data, while not benign and open to misuse, nonetheless serves a legitimate law enforcement purpose.

  20. BK says:

    When those in power routinely go unpunished and the past dozen years have been a steady march in one direction of civil liberty abuse, is anyone going to be held accountable when the NSA abuses this power?

    When the FISA court is a rubber stamp and other more transparent government regulatory agencies appear incapable of doing their duty, what oversight body, in secret or in public, will monitor the monitorers?

    When courts are unwilling to intervene to uphold civil liberties and 4th amendment lawsuits are thwarted by state secret exemptions, who will intervene when these programs cross your red line?

    When a government is increasingly less responsive to the people and oligarchs own the policy making bodies, will this pattern of civil liberty abuses be curtailed?

    When a Senator currently on the Senate Intelligence Committee has to go out of his way to pull back this program’s cloak of the secrecy, what indications are there that those with these powers have any intention of being forthright and transparent?

    History has been very clear that this program will inevitably be abused, those with real power will not be held accountable, a government oversight body will be stymied and specifically designed to fail, and token transparency is the most one can hope for. When the same bipartisan consensus that brought the world Guantanamo, preemptive and endless war, drone assassination, and rebooted torture and kidnapping as enhanced interrogations and renditions is now (and has been) very comfortable with these NSA’s secret programs and has no intention of limiting their powers, why believe that this NSA program will not be a disaster in the long run?

    • David Simon says:

      I would be delighted in a new Church Commission. But not for this Verizon data. For about a dozen other different actual affronts to civil rights.

  21. MJRH says:

    “The question is not should the resulting data exist. It does. And it forever will, to a greater and greater extent. And therefore, the present-day question can’t seriously be this: Should law enforcement in the legitimate pursuit of criminal activity pretend that such data does not exist.”

    But why not apply that logic to the contents of the calls themselves? How do you argue that phone conversations are inviolably private in a way that metadata and internet communications aren’t without just making an arbitrary distinction?

    I mean, maybe you have to make an arbitrary distinction at some point. You’re right that there’s always a tension between security and privacy. But to call the concerns of civil libertarians “bullshit” because these programs fall just barely on the correct side of the line of acceptability as determined by you (and/or our surely infallible legislators) seems overly dismissive.

    • David Simon says:

      Is it all that arbitrary? For the government to know which phone numbers dial which phone numbers, from where and for what duration is moderately invasive. It requires one evidentiary standard to obtain such information. To listen to a caller talk to another caller and record that event surreptituously is much more invasive of personal privacy, and requires a higher evidentiary standard. This has been true for much of the long legal history of electronic surveillance in this country.

      • MJRH says:

        Sure, I’ll of course grant that the content of the calls is more invasive than the metadata. My point was just that despite the real threat of terrorism, at a certain point there are resources that have to be denied to law enforcement if we’re going to live in a democratic society. You would agree that the ability to indiscriminately listen in on Americans’ phone conversations would be one of those resources. I think you would agree that the ability to torture people would be another. My feeling is just that the all-encompassing nature of these programs presents such a broad potential for abuse that they probably belong on that list.

        I do appreciate how conscientious you’ve been about responding to all these comments, though, and since we’re in agreement on plenty of the other terrorism-related issues that have been brought up (Guantanamo, assassinations without due process, and, at this point in the discussion, PRISM), I hope we hear more from you on those as well as the Verizon story.

        • David Simon says:

          Everything in the law enforcement arsenal can be used and misused.

          The 9mm can be used to shoot citizens indiscriminately.
          The interrogation room can be used to beat the shit out of people.
          The search warrant can be used to plant evidence.

          And yet somehow, we still arm our cops, let them take people into small rooms and press them to talk, and allow them to
          kick in the door and rummage around the place when they write well enough to convince a judge that it’s the right place to do it.

          This data cuts both ways, as everything does. When it is used well, it can be a legit asset. When it is misused, punish the misuse.

  22. ?.?. ??????? says:

    The only issue I had with the otherwise magnificent “The Wire” was that the author never touched on the very relevant topic of privacy intrusion and the perils for civil society in connection with governmental surveillance and wiretapping. My guess was it was omitted only because it would just overburden the already very rich plot, but from this post I understand that the author, intelligent and insightful as he may be in so many other social aspects, has no understanding (willingly or not) of the fundamental dangers total surveillance poses on any civil society.

    How utterly disappointing!

    I really do not think that one must have lived in a totalitarian society, as I have had in communist Bulgaria, to intellectually understand that total surveillance, and the fear of it, leads to complete self-censorship and the end of free expression and even thinking. It is the end of free society.
    And it is important to consider that, through the level of technological advancement, the Stasi strongmen could have only dreamt of the richness of information that Google, Facebook and co. are providing to the NSA. Not to speak about the analysis capabilities which are already available and are currently being developed.
    The power to surreptitiously know everything about everyone and have them in your hand by the potential of exerting pressure is incredibly corrupting. To watch the author intellectually refuse to understand this makes me very sad.

    Trying to prove that total surveillance is legal because of a remotely similar precedent in 1980s Baltimore would be a more fitting task for a cunning lawyer, like the fictional Levy, who tries to get his criminal defendant of the hook, than for an intellectual like you Mr. Simon. I do not even want to mention the red herring “terrorism”. I can assure you, the Stasi and other totalitarian secret services were more than good in foiling terrorist plots.

    My mind is boggled!

  23. Josh Kim says:

    If we were truly an autocratic, oppressive police state, we wouldn’t even be allowed to discuss this. We’d all disappear in the middle of the night, never to be heard from again.

    • David Simon says:

      I was gone there for a few hours, but it was to take my daughter out for the day.

    • Al says:

      Why would they bother to “disappear” anyone? It is clearly not necessary when people will roll over for abuses with hardly a peep (and nothing with actual teeth).

  24. ?.?. ??????? says:

    The only aspect that I considered lacking in the absolutely magnificent The Wire, was that it never dealt with the very morally questionable issue of surveillance and wiretapping. I thought it was left out just because it would overburden the plot, but after reading this post it seems the reason is that the author, intelligent and sensible as be may be in other areas, has absutely no grasp of its dangers for civil society.
    How utterly disappointing!
    I’m not sure that actually having lived in a totalitarian society, like I have in communist Bulgaria, is a prerequisite to grasping that total surveillance, or the fear of it, kills free expression, and at some point even thinking. Self censorship becomes way of life. And the power of the secret police that hears and knows everything and can pressure anyone into submission is huge.
    The Stasi strongmen could have only dreamt of the richness of detail Google and Facebook are providing to the NSA. Not to mention the automated analytical tools that are already available it are currently being developed.
    The possibilities of power misuse are just too big to ignore and the intellectual refusal of the author to grasp this makes me really sad.

    • David Simon says:

      I’m sorry we disagree on this particular point. I do agree about the overreach of American government in many areas. But this Verizon court order and what it represents, not so much. In the event that the data is used for other purposes than counter-terror under the FISA court order, then yes, that too will be overreach of a kind I will oppose.

      Thank you for contributing.

  25. Brian Dzyak says:

    The ultimate problem with the data mining scenario isn’t the data mining itself, but pretending that it can PREVENT further tragedies.

    If anyone was serious about ending “terrorism,” we’d be investing all that time and money into preventing the creation of new terrorists in the first place. We could accomplish that by withdrawing our Military Industrial Complex from our “Empire” around the world that serves only to protect Corporate profits instead of protecting the oppressed. We could also reinvest all that wasted “defense” money and instead put it into building schools and infrastructure to those nations who have grown to hate “Americans” for our brash arrogance, unrepentant wealth, and hypocrisy.

    Stop MAKING terrorists and oddly enough, terrorist attacks will dissipate. Crazy, I know.

    But that is all pie in the sky thinking because there is too much money in creating perpetual war. Nobody “in charge” has any serious intentions of ending “terrorism” or preventing new attacks. This data mining policy isn’t likely to stop any future attacks. It could help catch the bad guys AFTER they strike, but by then, the dead people don’t really give a shit.

    • David Simon says:

      I don’t agree with you that proactive law enforcement can’t prevent some crime. I do agree that it can’t prevent all crime. And certainly, the retroactive investigation of crime is a fundamental to reducing future crime. Catching the bad guys afterward always helps. It being what’s known as a deterrent and all.

      I agree with you about our overseas interventions creating additional alienation and volatility. We’re pretty damn good at making enemies. But that said,
      this the world we have right now and there are people out there who, given the opportunity and the resources, would like to kill Americans randomly. Any credible government has to have a meaningful law enforcement response to that reality.

  26. Gizmo says:

    David Simon,

    The Bush administration systematically tortured people. The Obama administration failed to fulfill its solemn constitutional and international treaty obligations to prosecute those crimes. And now we’re bombing innocent civilians via drone in Afghanistan. I could go on, and on, and on with examples of egregious behavior on the part of our federal government.

    And yet you want us to trust that same government with massive amounts of data culled from our personal phone calls and email? Do we look that stupid?

  27. AJ S says:

    David, this is a surprising read.

    You seem to firmly believe that this activity is legal. I think this is debatable at best. Both the constitution and specific laws on the surveillance of US citizens which have been neither repealed nor superseded make the legality of this data grab suspect. A law cannot make legal that which the constitution deems illegal. Moreover legality is not a simple binary concept and actions that are legal when taken by one entity are not necessarily legal when taken by another. Different standards apply to federal agencies, city police departments, private businesses, public businesses, and private citizens. The NSA and the Baltimore PD are not equivalent organizations.

    You seem to suggest that because something is legal, that makes it OK. This is a surprising position to take. I surely don’t need to invoke the many legal acts through history that have been deeply wrong to counter this.

    You seem to suggest that because this has been happening for a while, there’s less reason to criticize. It’s hard to understand why that would be the case.

    You seem to think that the difference in scale between a city police department monitoring pay phones in a small number of locations and a federal agency mapping the communications and locations of the entire population is not relevant. I have trouble knowing how exactly to reach across that divide in our understanding.

    You state early in your post
    “You would think that the government was listening in to the secrets of 200 million Americans from the reaction [...] Nope. Nothing of the kind.”
    And this perhaps reveals one source of the difference in our perspectives. I think if the government has communication data and location data on all its citizens, it is of the same kind as listening in to the secrets of 200 million Americans.

    Phone metadata is not anonymous. There are a vanishingly small number of phone numbers that are not trivially traceable to individuals. I think most people think that the people they communicate with and their location is private from the government and that that information should remain private from the government.

    You seem to think that communication and location data doesn’t matter. That because it’s not voice data, people don’t have the right to be concerned. I’m having trouble understanding that position and wonder if you have given any thought to how you could actually use this data. Have you considered how this data relates to the 1st Amendment’s guarantee of freedom of assembly and association? Have you considered how collection of this data could relate to the issues in NAACP vs Alabama (1958)?

    You suggest that because people use commercial services that track them in some way that they are aware of that fact, that they are happy with that fact, and that they should be happy for the government to have access to that data. I disagree with all those positions. Most people are unaware of the extent to which their activities are tracked, they are unaware that their actions can be correlated across different datasets, most people would not be happy if they understood this, and they’d be even less happy if they thought the government had access to this data. The fact that some businesses have access to this data doesn’t mean that the government should. You suggest there is implied consent where there is none.

    You repeatedly frame the conversation in relation to catching criminals – which is understandable given your history and the government agency involved – but perhaps we should keep in mind that the majority of US citizens, US residents, and the foreigners that communicate with them are law abiding and that making a phone call is not a crime.

    Your reference to billions of phone calls and the number of agents at the FBI and NSA suggests that you have a view of technology that dates to the 1980s. The US produces 40,000 computer science graduates per year all of whom can create data queries of the kind that could use this data to reveal where David Simon is likely to be at 10.30 AM on a Monday morning or which political affiliations David Simon has. It doesn’t even require computer science grads to run queries on a database. Normal human beings can extract useful connections from this data with minimal training. The NSA has a budget of billions of dollars and employs around 30,000 people – about the same number of employees as Google. The most intelligent of them are as smart as the brightest people at Google. Your suggestion that the NSA is too under-resourced to abuse this data doesn’t match the technological realities.

    All in all, you are making the case that it’s OK for the government to track its citizens and others because there are some terrorists in the world. But I wonder whether you have given appropriate weight to the fact that there are a small number of bad people everywhere? Including within the government and within the NSA? We don’t even need to think about bad people. Have you considered the damage that misguided, but well-meaning people who share many of our values can do?

    • David Simon says:

      I’m not relying on semantics here. They are not listening. That requires a wiretap, which requires a higher standard of probable cause in the form of a detailed affidavit indicating why they need to listen and what they expect to hear in the way of criminal activity.

      Yes, the data is a moderate intrusion into our collective privacy. I measure it against what I believe is the credible relevance of counter-terror agencies utilizing the data for specific purposes. If it is misused, that is another moment entirely. And then, I will certainly be on the side of those seeking real sanction against those responsible, as well as greater standardization and protection against the misuse of such data in the future.

      I’ve measured this specific court order against the risks on either side. I come out in favor of allowing the government to use this data base in a limited way.

      I know we disagree.

  28. Cheryl says:

    David,

    I am persuaded by your analysis as regards the US and pay phones etc. Surely, the new element is that, as a young woman sitting somewhere in a most rustic part of the UK my data is being harvested, even at a generic level, without my consent, by your Government without me having any say in who elects your Government.

    As a matter of principle that troubles me – would you be happy with the Chinese or North Korean Government harvesting your data on the basis of a potential threat that you don’t pose to them?

    You seem concerned about the death of Americans and an existential threat to them (and defend them with the energy I would expect of a male pugilist) but you where does your argument sit, for example, with the idea of women overseas who have been stalked, attacked by violent men without their consent and believe that the idea of liberty resides in them actively consenting to harvesting of information, even at a generic level, rather than having to opt out, in order to protect their privacy against manipulation?

    The emphasis on protecting Americans seems like a variant of a tiresome exceptionalism argument. As I hope you would agree, no nation can lay claim to exceptionalism – not even Kim Jong Un’s North Korea. Not yet, anyway…

    I speak as an admirer. Particularly of the way you respond to each and every post. Would that others had such audacity of engagement.

    Yours,
    CC.

    best
    NW.

    • John Willkie says:

      Cheryl;

      As an American citizen, I have zero real worries that, when I visit a web site in another land, something bad (aside from spam ads or virii) could happen to me or my data due to my visits. Nor do I expect any off-shore country to respect my civil rights granted by the U.S.

      Nor does the thought that the Norks or Iran or Chinese ARE harvesting what some call “data” but is mostly “useless garbage” bother most people in the real world one bit.

      The rest of your post is off-topic and illuminatingly emotional. The US, nor this program, is not responsible for anything bad that anybody can point to. It SEEMS to be responsible for eliminating at least one real threat — the one to bomb 15 NY subway cars. Subway cars, presumably, with women on board.

      Mostly, the collected data is useless and not worth the cost or trouble. How many lives would you like to see ended to prove your view of the value of a non-existential “principle?”

  29. Edwin says:

    Dude, you completely missed the point. Surveillance is potentially OK, the problem is when it is done illegally, secretly and without the consent of the American citizen.

    • David Simon says:

      This FISA-court order represents a legal action. And while you may disagree with its scope, all three branches of American government were fully briefed repeatedly on the order and its purposes.

      As to the consent of the American citizen, who do you mean? Even in ordinary electronic intercepts — never mind national security cases — law enforcement is under legal obligation to keep confidential the existence of DNRs or subpeonas or Title IIIs until well after the completion of the intercepts.

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