Counter-Arguments: Gathered and Answered

I am on a new server, one that claims to be able to handle a bit more volume.  With all the confidence such a claim inspires, it might advance the debate if we take a shot at systematically addressing all of the main criticisms and counter-arguments that resulted from my previous post on the NSA controversy.  For purposes of clarity, let’s do this in the Q&A form.

Q.  First of all, you do know that you are a crypto-fascist and naive shill for the burgeoning surveillance state.

A.  Yes, apparently so.  Yesterday, I was a neo-Marxist arguing against the totalitarian overreach of the drug war and the need to decouple capital from our governing processes.   You go issue to issue, ignoring all the proper ideological prime-directives, and eventually you wear all the names.

Q.  But what?  You love wiretaps?  Is this about the TV show?

A.  No.  I was a police reporter covering the urban drug war for about a decade.  I read a lot of Title III affidavits.  I’m fairly comfortable with some of this stuff, and much of the coverage surrounding the revelation of the Verizon court order struck me as uninformed.

Q.  Wait, you covered some old drug cases in the 1980s and 1990s and you think that entitles you to weigh in on national security issues?  And on the technological capabilities of today’s digitized data-gathering?

A.  Maybe, maybe not.  But this being the internet, where anyone can say pretty much anything if they believe it loud enough, I’ll take a shot.  Can we get past all the weak-ass ad hominem shit, and go forward with this?

Q.  Yeah, no problem.  For starters, you made an analogy to a Baltimore case in which the police put DNRs on city pay phones and captured phone data — even though they didn’t have specific names of suspects that they could link to those phones.  And even though in doing so they recorded the phone data from thousands of citizens who were using those phones legally.

A.  Correct.

Q.  That is not analogous to the Verizon court order.  The government now seems to be seeking the phone data of damn near every American.

A.   It is analogous in the way that matters, which is the legal definition of what constitutes a violation of privacy under the Fourth Amendment.  And in the Baltimore case, and in many other cases before and after it, the working logic was that the U.S. Supreme Court had ruled that there is no expectation of privacy for phone caller data — what numbers you called, when you called them, from where, and for what duration.  Because contractually, you as the phone user share this data with your phone carrier — a third party — the expectation of privacy has long been held to be minimal.

Q.  Sure, I get that there is a lower privacy for call data than for wiretapping, but the Baltimore case was pay phones.  Those are public.

A.  No, actually, if anything there was a higher concern for privacy because they were pay phones.  People using pay phones — to the extent they even exist anymore — have as much expectation of privacy as people who use their own home phones, under the law.  There is no legal difference.  In fact, at the later point of the wiretaps, there was more concern by the Baltimore Circuit Court about privacy violations on the pay phones for the simple reason that the detectives would certainly be wiretapping calls made by Baltimore citizens who were doing nothing illegal.  With a home phone, the presumption is made that the targeted suspect or those involved with him will be using the phone.  Not so with the pay phone.  Consequently, in the pay phone case the detectives were made to go the extra mile and have the pay phone under observation.  They were told to stop recording immediately if someone other than the suspect was seen using the phone.  On a home phone, the usual “minimization” procedures allow them to listen for a period of time before cutting off the call.  In short, legally there was zero difference.

Q. This was a small geographic area. You’re saying those Baltimore judges would have let the detectives put DNRs on every pay phone in Baltimore if they asked?  What about every cell phone?

A.  Well, honestly, the BPD had about as much manpower as you’d need to man maybe two wiretaps and a dozen or so DNRs citywide.  Anything more than that and the CID budget was blown.  But let’s say they had the capacity to do more.  Let’s say they knew from informants that pay phones all across the city were being used by, say, a citywide gambling organization to make coded calls to digital pagers placing bets.  And lets say they had the troops to gather and analyze all that call data and find the coded numbers and identify suspects.  Yes, a judge would say go ahead, in my opinion.  The point is this:  It has long been established by legal precedent that acquiring call data is not a Fourth Amendment violation.  Ergo, if obtaining it from a dozen or so payphones and modestly impairing the privacy of thousands of citizens for a period of time is deemed no violation of the Fourth Amendment, then doing so for all pay phones and doing so for tens of thousands or a hundred thousand Baltimoreans is also no violation.  It may be hard to accept emotionally, but the argument here isn’t about the numbers of innocent civilians who relinquish their phone data.  Whether its thousands or tens of thousands or hundreds of thousands, or perhaps — we’re soon going to find out from the ACLU suit — even millions, if the intrusion isn’t a violation of our privacy rights, then it isn’t.  If it is, then it is.  To argue that this case was localized and specific ignores the underlying judicial affirmation on call data, which is this:  If law enforcement can explain how they can only achieve a legitimate investigative goal in a given case by gathering call data on certain phones — even if the phones, in the Baltimore case, are for public use at large — then so be it.  And call data has for a long time been considered outside of the Fourth Amendment.  That’s not from the Obama administration, or Bush, or even Reagan.  Try Jimmy Carter.

Q.  Okay, well that’s payphones.  What about…

A.  Cell phones, right.  I covered other cases in which the BPD and federal law enforcement pulled phone data from all the calls bouncing off entire cell towers for weeks and months at a time.  That’s all calls by tens of thousands of Baltimore citizens giving up their metadata to a police file merely because their calls went through a given tower during a given time period.  All those people have Fourth Amendment expectations of privacy, and all of them were using their private, personal cellphones.  But again, call data has long been ruled to have little expectation to constitutional guarantees of privacy.  And not because of the war on terror or national security issues — this has long been true for domestic law enforcement.

Q.  Hold on.  But in the Baltimore cases, weren’t they investigating some bad guy to begin with?  Wasn’t there an initial target?  Or were they just setting up on phones and saying, let’s see if we can find any criminal activity?

A.  Yes, there was an initial target.  And certainly some initial phone information.   Obviously, they were looking to see if that number could be tracked to others through the cell tower or through the pay phones.  That’s how the game is played.

Q.  Ah ha!  Gotcha.

A.  How so?  The scenario in the original essay suggests the same dynamic.  An overseas phone number linked to suspected terrorist activity is achieved through investigation or informant information.  That number is then routed through an NSA data base of billions of domestic and domestic-to-overseas calls.  Same logic, larger scale.

Q.  But the scale is the thing.  You’re willing to let the government have every single American’s call data for an determined period of time?

A.  The scale is extraordinary; it’s global.  But of course, these are proactive investigations into global terror and technological capabilities now make such investigative efforts possible. And still, regardless of scale, the ethical and legal argument is the same as what happens with any DNR search in any domestic criminal investigation. If it has been ruled time and again for more than three decades that investigative techniques that acquire the call data of thousands or tens of thousands of innocent Americans is not a meaningful intrusion on the Fourth Amendment, then with regard to every single American affected in every single instance, it is also not legally a meaningful intrusion for millions or tens of millions.  It doesn’t necessarily follow that scale transforms the legal ethos, at least so far in terms of legal precedent.  The Supreme Court may at some point decide that while a certain action doesn’t individual impair the rights of thousands or tens of thousands with regard to call metadata, maybe the same action does so when it involves millions.  But you can see a fundamental logical problem there.  Either something is a violation of privacy, in which case why are we doing it to tens of thousands?  Or it isn’t.  And indeed, with regard to the NSA program, consider: For the average American, there is a certain greater anonymity in being part of call data base of billions and billions of calls. Under the FISA court order, no human is even assessing your call data, at least not until your number gets linked with someone in Chechnya.

Q.  But the Baltimore cases, they didn’t set up on the pay phones or the cell tower until they were already investigating a suspect and a suspected crime.  Here, you’re setting up on every American phone in advance of even having a number.  Why not learn the suspect’s number and then see who he calls?

A.  Time matters.  First of all, the retroactive activity of such a phone can be valuable to investigators.  Who he called a month ago or even three days ago might matter in terms of proactive response to an actual terror plot.  And if you sit on the phone and wait for it to dial a stateside number going forward, in order to begin picking up the threads of the conspiracy, you’re burning time.  Time is important in proactive counter-intelligence.  More than that, the NSA has extraordinary computer capabilities, but even in the most exigent circumstances, how long do you think it could take — once a suspect number was identified overseas — for intelligence agencies to get a court order from the FISA court, forward it to Verizon and then — here’s the part that we don’t know — have Verizon achieve that immense data base and forward it on.  How much bandwidth is required?  And then how long after that for the NSA analysis?  I don’t know the answer to those questions, and neither do you, but what the government is saying to the FISA court is look, in order to achieve a real-time asset in this critical investigation, we need to have the data base set up.  They’re also saying they won’t access that data for any other reason, that it won’t be used for domestic purposes, and that they will only pull the metadata and begin investigating the call history of specific Americans once a phone number has been specifically linked to a suspect phone.  And at that point, of course, all the Fourth Amendment protocols still have to be observed before a wiretap can be achieved.

Q.  Why can’t they access the call history data from the overseas phone side?

A.  I’m guessing that such a process would take even longer going through overseas cell carriers.  I’m also guessing that there would be concerns about security being breached by a U.S. intelligence inquiry of that kind in certain locales.

Q.  I’m not buying it.  The chance that there’s a ticking bomb ready to go off somewhere at the moment they get on this bad guy’s cellphone — that’s pretty unlikely.  Why can’t they just wait on the guy to make some calls.  Then they can only to go Verizon and other carriers for those specific numbers and pull that meta data, without having to collect everything on all of us.

A.  Well, what if he doesn’t make another call?

Q.  C’mon.

A.  No, I’m serious.  Because there’s something else about cell phones that even street-level drug dealers in the U.S. have known for fifteen years, which is that they are disposable.  Hell, we sell disposable phones over the counter in convenience stores.  What makes you think it’s different for anyone operating in the echelons of a terror organization that has been at war with a technologically aggressive enemy for more than a decade now?  In the time that you want the FBI and NSA to wait around hoping that the Verizon data base will reach them and be ready for a computer run, or for that suspect to begin making fresh real-time calls to co-conspirators, he could be dumping the phone and getting a new one.  It’s arguable that the average shelf-life of a suspect cell phone in the war on terror is a day or two at best.

Q.  Fine, so there is a theoretical reason for the NSA to have this data on hand, in advance of a specific computer run.  But…

A.  Which is an argument that was likely made to the FISA court every few months, when this program came up repeatedly for renewal.  Because while the court order has been leaked, there’s probably a very long, very detailed document written by NSA and FBI investigators arguing all of this and more.  No one has leaked that document yet, but it’s out there and it’s the argument that convinced the FISA judges to renew this program time and again. And it’s all of the argument in that document — as well as the long, legal history of call data being given minimal privacy value under U.S. law. — that the ACLU is going to have to overcome in its lawsuit.  Saying simply that you can’t ask for this data from so many Americans without a good reason isn’t going to cut it, I’m guessing.  The government is going to have whatever reasons on hand they detailed for the FISA court in the first place.

Q.  Don’t interrupt me.

A.  Sorry.  I get carried away.

Q.  Yeah you do.  What I was gonna say was, okay there’s a theoretical reason.  But you do realize that this data can be misused.  With today’s technology and the capacity to track people using metadata, the misuse of data such as this could be valuable to a totalitarian surveillance state.

A.  It could indeed be misused.  Every law enforcement asset can be misued.   A patrolman can misuse the 9mm on his hip and kill an unarmed, innocent citizen.  A search warrant can be misused to plant evidence.  An informant can be misused to manufacture probable cause.  An interrogation room can be used to induce a false confession or beat the hell out of people.  And yet we still allow cops to carry guns, keep informants, interrogate suspects and write search warrants.  Because absent those elements, very few crimes will ever be solved.  And this data base, too, is a double-edged sword.  In fact, as I said in the original post, for all we know the data may already have been misused or, certainly, it is likely to be misused at some point by someone in the future.  All law enforcement assets are inevitably misused at some point in time.  Remember that the existence of the FISA court — as flawed a creature as it is because of the overwhelming reliance on secrecy — didn’t exist until the reforms of the Church Commission.  Before then, the executive branch simply gathered whatever information it wanted by executive order, without any legal oversight at all.  But even so, too much of this process is out of public view to make anyone comfortable.

Q.  And yet you’re willing to let them have all this data.  That’s pretty blase.  You say it likely will be misused, yet give it to them anyway.

A.  The data exists.  It’s not going away.  And our technological capabilities are not something that we can pretend don’t exist.  But if I am correct that allowing this existing data base to operate in real-time is indeed a counter-terror asset, then denying it to the government is a very dangerous game, not just in terms of counter-terror, but in terms of our overall defense of privacy and our civil rights.

Q.  The fuck you say?

A. Think about it in terms of realpolitik.  If we deny a viable tool to law enforcement and there is another attack on a major scale on American soil, try to imagine the first congressional hearing at which the FBI director or NSA director is asked why we didn’t have any idea about this or that suspect’s travel to and from Pakistan, or his telephonic contacts for the last eighteen months with this domestic co-conspirator or that, and he answers:  Because we did not use our telephonic monitoring capabilities.  At that point, it is hard to overestimate just how much pressure our civil rights and privacy might actually be made to endure, and how little oversight might be required of American law enforcement and intelligence-gathering for a generation hence.  On the other hand, if indeed there are instances in which the privacy of Americans is breached using this data, or when this data is used as a tool to attack civil rights or political dissent — it’s at that precise moment that some meaningful reform becomes a viable and practical political agenda.  Again, the Church Commission followed the Nixonian excesses; American politics is nothing if not a pendulum.  Yes, it would be nice if our national political discourse could be a little less reactive, but good luck with that.

Q.  If you wait for Americans to have their civil rights violated it’s too late.

A.  The same can be said for terrorism, of course.  If you wait to use your counter-intelligence capability, something might blow up.  But with regard to the violations of civil rights, too late for what?  If you wait for the misuse of this data, there will be American who suffer affronts to their privacy and perhaps even violations of their basic rights.  And that will be a stain on our republic, I know.  But we put all the Japanese-Americans into camps.  Lincoln suspended habeus corpus and locked up without criminal charge an entire state legislature to prevent a vote of secession.  J. Edgar Hoover had his files on half the country.  This country has endured some notable affronts to our constitutional guarantees and managed, time and again, to right ourselves and change course.   We’re  a lot more resilient than we credit ourselves; and historically, even under much greater national duress, it isn’t that thin a line between a republic and a totalitarian surveillance state. There are a good many points in between.  In fact, at this moment, I’m far more affronted by a half dozen other authoritarian overreaches involving the drug war, Guantanamo, the executive branch’s use of drones against American citizens, or the DOJ’s chilling effect on a free press through the pulling of reporters’ phone records.  Get ripe over all of that.  Those abuses are actually occuring. Or if you are convinced that the future misuse of this data base is the greatest authoritarian threat, then play a smarter, longer game and allow the limited, court-sanctioned use of the data in counter-terror programming, and the save all of the outrage that adorns this moment for a government that actually violates someone’s rights.  Not in theory, but in deed.

Q.  Okay, but if we wait for the misuse, how do we even know about it?  As you point out, the FISA court is enveloped in complete secrecy.

A.  Now you’re at the crux of it.  This is where this current controversy can allow us to take a legitimate stand to protect our privacy.  In fact, I think the overwhelming secrecy of the FISA process is untenable and damaging to law enforcement’s own case.  The issue of this call data is, honestly, no surprise to those who have been following those moments in the last several years at which portions of the iceberg have broken the surface.  There has been enough side-references that even if you didn’t understand the details, you had to know that we were monitoring overseas communications in an aggressive way, and you had to assume that they would be trying to track connections between overseas and domestic targets.  What shocked everyone is simply the sudden and blunt statement that yes, the government has legally been granted the data on all of our phone calls.  Had the NSA director or FBI director, or someone in the FISA process given the public even a general sense of what was happening and why, the revelation of this court order might have come with some measure of context.  But more substantial is the fact that secrecy at this level is inevitably going to lead to the misuse of any law enforcement asset.  The FISA process needs to be opened up; that’s the real reform here.  Not denying ourselves our own technology for an actual societal goal, but creating a framework to prevent the misuse of that technology.

Q. But how?

A.  There needs to be some independent review, some independent oversight of the FISA court, while at the same time maintaining the secrecy for national security purposes. Just spit-balling, but how about a FISA Review Panel comprised of law school deans, some civil liberties advocates, a couple former U.S. senators, etc.  All of them carefully vetted for national security clearance.  Give an independent panel the charge of reviewing all of the FISA rulings and proceedings and issuing a periodic report to the intelligence committees and the White House.  The cover sheet of that report, without referencing specific casework or national security programming, provides an overall assessment of the FISA performance with regard to civil liberties and privacy issues and is made public. The full report goes to the president and the committees.  Still secrecy, but now at least, independent eyes are on the process and there is, in effect, a report card that all those law school deans and civil rights attorneys will stand behind if the shit hits the fan.

Q.  Isn’t this a lot of trouble for a lot of nothing?  I mean, the war on terror?  I know Boston got hit — but those were two homegrown actors.  And 9-11, that was more than a decade ago.  So very many more people die from regular homicides….

A.  Don’t get me going on gun control.

Q.  Or from car crashes.  Or from prescription medicines.  We’re trading our liberties when your chance of getting killed by terrorism is less than your chance of getting hit by lighting.

A.  That’s statistically true, but in terms of both the credibility of governance and the nature and reality of terrorism, you’re not being entirely honest.  It’s regrettable that so many other things will take the lives of so many more Americans, but terrorism is unique in that it seeks to extend a political argument and create if not an existential threat to the nation as a whole, then a threat to a nation’s ability to maintain its political course and policy.  It is about more than the bodies, it’s about the provocation and fear that follow the bodies. That’s why they call it terror. Israel is a state long accustomed to living in a volatile neighborhood, and they are capable of enduring terror campaigns the likes of which we have never seen, yet there is no denying that even that nation was made to end a coalition government and abandon an ongoing peace process in the wake of a terror campaign by extremists.  In this country, I would argue that the costs of 9-11 were not merely the intervention in Afghanistan, which followed directly from the World Trade Center attack, but the secondary and much more problematic war of choice in Iraq.  Again, as a matter of realpolitik, the costs of enduring a large death toll from a massive strike on U.S. soil will not merely be the bodies, but in the demeanor that the U.S. displays in the years to follow.  We ran a fever after 9-11 and it showed in our foreign policy, to the point of great tragedy.  And what might we do after the next major attack, amid another several thousand dead?  Making a pie chart out of the body count and dismissing the challenge that terror represents to any credible government’s need to maintain both the safety of its citizens and its own national policies — that’s almost purposely stunted.  It ignores the key component of any terror campaign.  And saying, well we should ignore that component and just sweep up and go about our business?  Good luck with that, too.  That’s an argument for political luftmenschen.

And even as far as the raw statistics:  It’s a little bit disingenuous for the same critics of a proactive response to terror to note that the technology of data collection is now so advanced that we can’t risk its use, but not to acknowledge that the technology of mass killing is rapidly expanding as well.  Deaths from prescription medicine not only pose little threat to the our national course and psyche, but they’re going to increase in number by ones and twos.  Those 3,000 deaths from terror over the last decade is a number held down perhaps by the fact that the threat of terror is exaggerated, perhaps by our proactive counter-terror measures, perhaps by both factors.  But that number could, in a single instant, double or triple.  Technology cuts both ways, and it’s fundamentally more honest to acknowledge that truth on both sides when making a statistical equation about cost vs. risk.

Q. Okay, well if all of this is so goddamn legal, then why keep it all a secret?  Why try to hide the program?

A.  Seriously?  You’re asking why they would try to keep secret the details of a program by which they would surreptitiously monitor terrorists through their communication?  I’m guessing that right now, if you live in a mid-sized American city, there are at least two or three wiretaps and maybe a dozen or two DNRs gathering numbers in various domestic investigations.  And those DNRS and wiretaps are not only recording the phone data and in some cases the conversations of suspects, but the data and conversations of innocent citizens as well.  And you haven’t been told about any of those efforts, have you?  Why in hell do you think law enforcement would make public their efforts to gather information from targets at any point before their ability to do so was fully exhausted?

Q.  What about the PRISM program? You okay with the government reading your emails and following your internet activity?

A.  I think they should be doing the same thing with the internet as with telephonic communication.  And it is my understanding from the reporting that PRISM only targets overseas communications.  But having said that, our privacy law on e-communications domestically doesn’t correspond to our existing safeguards for telephonic content.  Especially because the capture of internet data is effectively the content itself; there is no comparable thing to call data.  A good argument could be made that legislatively, we should do more to give at least person-to-person e-communication the same protections as telephonic conversations.  It would indeed be unacceptable if PRISM were expanded to the point where everyone’s actual internet content was accessible without a warrant commensurate not with metadata, but with a wiretap itself.  But that said, if there is reason to believe that our adversaries are using the internet to communicate, I would hope that we’re approaching those communications in a comparable fashion.

Q.  You done?  It’s like you had an answer for everything.

A.  Well, let’s be honest here.  I wrote the fucking questions.  But I went through the comments from the last post and really, those are the very ones that kept coming over the transom, time and again.  Go back and read ’em yourself and you’ll see.  I’m sure people have other arguments to make.  Maybe better ones than landed here.  Am I still a crypto-fascist?

Q.  Probably.  You’re definitely an argumentative prick.

A.  Do tell.


  • Wonderful as always. There’s one point which you glanced off of in addressing the unique threat posed by terrorism which I think deserves to be stated explicitly, though.

    Counter-terrorism programs like PRISM aren’t really about the Boston Marathon or even 9/11. They’re about .

  • So fucking glad you took the time to weigh in Mr. Simon.

    When someone (as praised as you are) creates art AND then also takes the time to REALLY share his perspective on important issues we all benefit.
    Thanks for teasing out some of the bullshit. At least for me.

    Achilles (via Seoul)

  • Hi David,

    I agree with pretty much your whole argument here with the exception of the idea that we should wait until people’s Right’s are violated before trying to do something to prevent it. A big part of your defence of the program rests on the idea that it is proactive with regard to saving time in finding needles in haystacks because the NSA owns the stack and doesn’t have to ask for it or find out it’s been deleted. Yet you seem to be saying that as citizens, we should be doing the opposite when it comes to be being proactive about our privacy rights. Should we not be just as concerned about preventing the NSA from abusing it’s power, as the NSA is about preventing terrorist acts?

    I agree that the media’s fear-mongering over the issue is not helpful. And that if anything we’re closer to Huxley’s dystopia than Orwell’s since we all want these toys that make our lives simpler and “happier.” I mean how can anyone’s concerns about privacy be taken seriously when so many of us post everything about ourselves and what they’re doing and where they’re doing it and with whom, minute to minute, on a daily basis?

    I do think we should be doing something as citizens besides waiting for the abuse to happen. As you say, there needs to be much more reasonable debate about transparency, for example. But unlike most of the Alex Jones types, I don’t think Orwell’s dystopia has come to North American shores.

    Great debate hear though.

  • David,

    It’s refreshing to see an attempt to flesh out the practical implications of the NSA programs without the sort of generalized arguments that I find so problematic in much of the coverage. Too many people have grossly compared this to Orwell, etc. It is irresponsible to assume widespread surveillance will absolutely lead to a totalitarian regime. Totalitarian states, real or imaginary, do not usually make their surveillance practices secret. In fact, the very visibility of institutionalized surveillance occasions an internalization of power far beyond the management scope of the government and is the key to the successful execution of a totalitarian state. The secrecy of the NSA program and the corresponding public outcry classify this as a very different iteration of the problem at hand, which I think people are not quite grasping. This is the problem with analyses that rely on the general rather than the specific.

    I agree with you that the possible misuse of such technology is not an argument against its implementation. The abuses that most concern me have existed and will continue to exist regardless of these programs. Why is the collection of this data more acceptable for the private industry than the government? I think it’s a fundamental misapprehension of our time that the U.S. government is a concerted evil, instead of the diffused mechanisms of a capital system that makes us believe in a conception of freedom that is not only impractical but selfish and irresponsible.


  • “…but terrorism is unique in that it seeks to extend a political argument and create if not an existential threat to the nation as a whole, then a threat to a nation’s ability to maintain its political course and policy.”

    I am so tired of hearing these arguments trotted out. “Terrorism is unique. Terrorism is a separate phenomenon from other types of violent crime. Terrorism is a prima facie game-changer in the realm of national security policy which renders all the old enforcement mechanisms obsolete and demands innovation.” You and so many people like you–people I respect that I tend to agree with about virtually all things political–treat these assumptions like they’re stipulated facts, when in fact they’re highly subjective value judgments. I mean, you’ll pardon my skepticism here, but do you know the first place I heard this argument made? It was before the noxious asbestos cloud had even settled over Ground Zero. Cofer Black held that infamous press conference where he described a “new game” with “new rules,” and how the “the gloves have come off.” Soon enough everyone from Condi Rice to Vice President Palpatine himself was towing the same line on national television every chance they could get. This was, of course, long before anyone actually had any idea how such a massive security breach had been allowed to occur unimpeded. They didn’t know if a lack of resources was the culprit, or if it was simple human error. But of course none of that mattered. The notion that the terrorists were somehow playing by a different set of rules that required us to do the same was useful not because it was true, but because it absolved them of culpability for the attacks (“What could we have done? They cheated, I tell you, CHEATED!@#@”). We were vulnerable at the time, though, and took them at their word (at least, some of us did), and now this useful little lie exists as a relatively unexamined premise of our national discourse.

    It’s proven useful for a lot of different things, that’s for sure. It’s what opened the door on torture policy before seasoned CIA and FBI interrogators had been given a chance to apply traditional interrogative techniques (building personal connections, quid pro quo, etc.) to their questioning of terrorist suspects. It’s the assumption that justified the creation of Gitmo and a modified military tribunal system before we’d even given our existing legal system the opportunity to handle enemy combatants. And now here it is again. You’re telling me that we’ve gotta shift our enforcement paradigm and innovate and maybe get our hands a little dirty, because terrorism constitutes an “existential threat” to “our way of life.” Why are you dealing in these abstractions, dude? You’re arguing that this “existential threat” exists not in the damage inflicted by terrorist attacks themselves in terms of human casualties and infrastructure damage, but in our fear-based reaction to those attacks, right? So this is all based on your understanding of Americans’ collective political psychology, which is that we are helpless in the face of terror, and that we’ll always respond to attacks like 9/11 with violence and caprice. You’re saying we have to accept new and invasive surveillance and intelligence gathering techniques and legal frameworks because if–God forbid–we get hit again, it’s gonna be Iraq War 2: IED Boogaloo. I mean, okay. If we’re having a theoretical argument I maybe tentatively agree with you. But why not deal with things that are a little more concrete? If you want to persuade me that terrorism is unlike other forms of violent crime, then why not talk about how it’s shown itself to be resistant to time-tested and effective law enforcement mechanisms for combatting crime?

    Well, because you can’t. Let’s look back at domestic terrorist attacks that we’ve come to a consensus were “preventable.” Can a plausible argument be made that the simplest strategy for achieving their prevention would have been aggregating the entire world’s phone metadata, or snooping on massive volumes of digital communication? Last I checked the 9/11 Commission concluded that the CIA had plenty of information pointing towards a large-scale domestic attack that they’d collected through intelligence gathering methodologies that had been in use for years, and that a combination of human error and the Bush Administration’s insistence that the counter-terrorism unit turn its attentions away from AQ were ultimately responsible for that information being overlooked. The underwear bombing, the Ft. Hood shooting, the Times Square bombing; in all of these cases ample data suggesting both an upcoming attack and the attacker’s identity was freely available to law enforcement but ended up being ignored or misinterpreted. And you’re telling me that what our intelligence services need is more data? Not just more data, but thousands of times more data? This doesn’t strike you as a little, you know, fucking insane?

    I guess my point is just that we’re having the wrong fucking argument about this issue. Everyone in Congress has moved on to the question of “does PRISM work?” to whit plenty of people have responded “yes, information collected through PRISM has thwarted terrorist attacks.” So? That tells me nothing. Point me towards a successful terrorist attack that took place under the watchful eye of law enforcement properly utilizing the tools already at its disposal that could moreover plausibly have been prevented with the addition of a massive untargeted datamining program and you’ve got my attention. Until then, what the fuck are we talking about? This is the same kind of shit that I find so infuriating about the gun control debate as it relates to domestic crime. How have we moved onto talking about PRISM when we have done so little to shore up the security of our stockpiles of chemical, biological, and especially nuclear weapons, as well as those of other countries? For years security experts have been saying that the possibility of AQ or some other extremist organization nabbing a nuclear payload out of a crumbling missile silo in some God-forsaken corner of the former USSR presents an incalculable danger to our national security. Indeed, we allow just such a worst case scenario to guide the terms of our debate on counter-terror policy. But what the fuck have we done about it?

    I dunno, I suspect I may be arguing with a straw man here. I’m not sure whether you (Mr. Simon) consider the PRISM program necessary and prudent, or if in these posts you’re just posing a hypothetical argument that assumes it is as some sort of intellectual exercise. If so, cut it the fuck out. Personally, I think the program is just baseline crazy. I think it’s something contrived not to help us overcome our fear of terrorism but rather to shield us from it. I think that whatever portion of the public’s fear of terrorism such a program assuages is merely displaced; that where once people were afraid of their commuter flight into O’Hare getting hijacked and flown into the Sears tower, they’re now merely afraid of their own government. I think for OBL the thought of his handiwork leaving Americans frightened of the institutions of their own democracy would have been nothing short of priapastic. And so I don’t think any of this shit could ever be necessary or prudent. We seem to disagree on that. But I think we do agree that the justification for implementing a program like PRISM in the first place should be transparent, elaborate, and SOLID if it’s going to exist at all. I’m inferring as much, though, because you haven’t made it clear. Reading what you’ve written, it seems like you sat down, pondered the structure and purpose of the program, came up with a couple hypothetical situations where it would prove useful, and then moved immediately onto trying to descry how it could be integrated in the safest way possible. Which is fine if you’re just musing to yourself. This is a public blog, though, with a sizable readership that looks to you for guidance in forming their own opinions. I get that you think there ARE circumstances where these programs are acceptable policy, but if you’re at all conflicted about whether we’ve reached those circumstances (as I desperately want to believe you are) it would be nice to see you expound on that a little more. /prescriptive gasbaggery

    • You are tired of terrorism occupying a unique place in the pantheon of threats to society and the state. I get it.

      I disagree. The human capacity for mass killing over the last century or so has taken an extraordinary, geometric turn. Technology, again. Always amazed that the same people who are in such a rush to chronicle the potential of informational technology to undermine civil liberties and privacy, have so little imagination when it comes to the possibilities for technology in the realm of political terror and the application of political violence. Hard to pretend that the stakes are high for one, and not for the other. Hard to imagine the reach of technology in select slices, I would think.

      I can only tell you it is a credible government’s responsibility to do what is plausible to attempt to be proactive. Citing terror events and declaring loudly that hey, no one prevented those, tells us nothing. We don’t know all that was prevented, and there are myriad reasons why something might not be prevented. None of that is evidence for inertia as policy. I covered crime carefully for a decade an a half. I know that crime prevention and suppression efforts can’t stop all criminal activity, but that citing such is a trivial argument against prevention and suppression.

      I’m sorry if you think I’m writing what I don’t believe as some sort of straw man. I wouldn’t presume to waste anyone’s time doing such a thing.

      • Ah, sorry. I’ve not made myself clear. I definitely did not intend to imply that you were deliberately constructing straw men just to fuck with us bleeding hearts. I think you’re bellicose and a little dismissive, but I know you’re committed to trying to have honest discussions here. I simply wasn’t sure whether you were assuming the necessity of programs like PRISM in order to have a discussion about how to best implement them (that is, after all, the phase of the process in which we find ourselves), or whether you actually believed that necessity existed. I was inferring the latter, but I wanted to acknowledge that that inference might have been a misinterpretation of your beliefs. Anyways. Moving on.

        “I can only tell you it is a credible government’s responsible to do what is plausible to attempt to be proactive. Citing terror events and declaring loudly that hey, no one prevented those, tells us nothing. We don’t know all that was prevented, and there are myriad reasons why something might not be prevented. None of that is evidence for inertia as policy. I covered crime carefully for a decade an a half. I know that crime prevention and suppression efforts can’t stop all criminal activity, but that citing such is a trivial argument against prevention and suppression.”

        You’re misrepresenting my argument here. I recognize that terrorist attacks will always occur, so long as those attempting to perpetrate them believe that they’ll achieve a desirable result. In fact, that’s precisely why I think erecting a massive national security state around our irrational fear response to terrorist violence–while doing nothing to address the psychology that undergirds it–is stupid and self-defeating. Still, that’s not the argument that I want to have here. My point wasn’t that terrorist attacks are always going to occur, so fuck it let’s just go about our business. My point was that of those terrorist attacks which slipped through the grasp of our intelligence and law enforcement apparatuses (apparati?) and were brought to fruition or nearly so, the common theme is one of preventability, not due to lack of resources, intelligence, or technology, but rather due to incompetence and poor tradecraft. You want to talk about these programs in terms of pros and cons–what we give up and what we get in return. Well, from that slim portion of our national security infrastructure that’s visible to the general public, it looks to me like a massive deluge of unsorted data is about the last thing our security services need. In fact it looks an awful lot like we’ve yet to find an effective way of handling the information we have already.

        Look, I’m willing to account for the possibility that information technology could potentially be as dangerous in the hands of terrorists as it is in the hands of a poorly supervised government. Fine. I find it a little more unlikely, since making destructive use of that kind of technology generally requires a) education and b) vast computing resources unlikely to go unnoticed and difficult to acquire if you’re just a strapping young math prodigy from Tora Bora. But I’ll grant that it’s possible. Even then, are the terrorist operatives actually capable of making pernicious use of that technology the ones whose GPS coordinates you’re gonna pinpoint by harvesting their Gchat logs? And fuck, are the kinds of terrorists who are exchanging incriminating information on web platforms whose user agreements stipulate their own compliance with user information requests from the US government really the kinds of criminal masterminds we’re concerned about successfully evading traditional enforcement? I mean, I’m getting off topic here I know, but as you’d say: c’mon.

        And if you’re not talking about the realm of information technology; if you’re talking about nasty advances in biological, chemical, and nuclear weapons when you refer to the enormous destructive capability of modern technology, well, great! But that doesn’t have fuck all to do with PRISM or metadata. If you wanna take a trip down to Congress with me and lobby for global arms reduction and substantive investment in securing current stockpiles of WMDs, well, shit dude, I’ll bring the scotch if you bring the paper bags of unmarked nonsequential hundred dollar bills. But that’s kinda the point. There are all these tried and true methods of crime reduction that are totally scalable and don’t raise anyone’s Constitutional hackles. Who can argue against securing arms stockpiles with a comparatively modest, one-time financial investment? From what I understand a lot of the CIA’s success in uncovering Al Qaeda’s structure and taking out its component parts has been achieved using information obtained through a pretty classically run criminal informant system. They pay people on the ground for information and a lot of that information checks out. Who can argue with that? So we’ve got all these things that work and that we understand well from a pro-con perspective. Wouldn’t it be better to exhaust those resources before we move on to shit we don’t understand possessed of such an obvious downside?

        I get the idea that generally it’s advisable to be proactive about counter terror work because the stakes are so high. I guess what I’m trying to get you to consider is that from the evidence we can see it looks arguable that being proactive in this particular way could ultimately be counterproductive; that we’re giving our intelligence services new toys when they’ve routinely showed themselves to be incapable of making good use of their old ones. Sure, we haven’t seen behind the veil, and there are plenty of successes and near failures that I’m sure we don’t know about, but I think it would be fatuous of us to just accept these people’s claims of PRISM’s necessity and unique effectiveness. That’s the approach we took re: “enhanced interrogation,” rendition, indefinite detention, and fucking drone assassinations. These conversations shouldn’t start with “can we do this in a way that reduces risk to an acceptable level?” they should start with “do we need to be doing this at all, given the risk it poses?” And frankly if our government refuses to make even a pretense of engaging in and facilitating that discussion, then fuck it. No cool shit for you.

        Also, how cool is it that I’m venting spleen at David Simon right now, and he’s venting spleen right back? America, man. Fuck yeah.

        • You’ve not seen any of my spleen, I can assure you.

          I was indeed referring to the fact that chemical, biological and nuclear capabilities are becoming more compact, more mobile and more accessible to non-governmental agency and control. If you told me that “only” the Boston Marathon or its equivalent was going to happen every year somewhere on American soil, it would create a credible cost-risk ratio for discussing a ratcheting down of our counter-terror capabilities. At least I think, so.

          But honestly, you can’t tell me that. No one can.

          The stakes here are enormously high. And I am not sure that this database sitting over in Utah, on a federal court order for a distinct and singular purpose, creates stakes that are particularly high at all. As I keep saying, if the government wants your metadata, or even your internet activity, it can achieve that through a regular domestic FBI field office and a U.S. District Court judge. And yes, short of a wiretap, nothing more than a court order is required. Knowing how fraught the misuse of this particular program would be politically, if discovered, why would the NSA or FBI even violate the conditions of the FISA-court order, when they can get the same data the old fashioned way, just as easily.

          Can we become an Orwellian surveillance state with stunted civil liberties if we accept every governmental demand against our privacy and freedoms. Surely. But this republic went through the jailing of entire ethnic populations in detention camps, the suspension of all civil liberties in the anarchist scare after WWI, massive witch-hunts in the Cold War and numbing levels of wiretapping, domestic spying and even blackmail under Hoover’s FBI. Lincoln locked up my state’s legislature without charge and suspended habeus corpus to prevent a vote of succession. And somehow, here we are. Arguing, you and me, about a database and we don’t yet have any actual evidence of its use to impair the privacy or civil liberties of any citizens. Pick your battles, brother.

          If you want to get exercised about ongoing government overreach. Start with Gitmo. And the force-feeding of hunger strikers. Or drone assassinations of American citizens. Or the drug war. Allow the meaningful use of new technology and police the misuse when it happens. And hey, there is plenty of authoritarian overreach right now that is more than theoretical.

          • “If you want to get exercised about ongoing government overreach. Start with Gitmo. And the force-feeding of hunger strikers. Or drone assassinations of American citizens. Or the drug war. Allow the meaningful use of new technology and police the misuse when it happens. And hey, there is plenty of authoritarian overreach right now that is more than theoretical.”

            Agreed. And rest assured, all of those things do incense me. But I agree with you about those issues, and where’s the fun in consensus? That is not what the internet is for, sir.

            To be clear, I’m not thrilled about the aggregation of phone records. I don’t think it’s illegal, though, nor really anything new. My reservations with that program are once again with its efficaciousness. It’s so much data that you’d need some pretty god damned well-honed algorithms to trim it down to a workable amount of information consistently meriting human inspection. And maybe the NSA has those very algorithms. I dunno. But I still find the expenditure of $1.7 billion dollars on a new data center to store everything their collecting a little frustrating when it when its necessity is based entirely on the agency’s self-reporting. I also think it undermines the President’s professions of wanting to shift off of a war footing, as well as out practical ability to accomplish same. All of these programs are the product of a wartime conception of appropriate surveillance; if we’re winding down the war machine then why are we investing in long-term wartime infrastructure?

            Anywho, my real beef here is with the PRISM program, and I think you’re pretty blithe and unconcerned about the consequences of its abuse, even if they are still theoretical at this point. I mean, imagine if the PRISM technology had been available to Dick Cheney and his cadre of soul-reaving homunculi on the morning of September 12. Is there any doubt in your mind that it would have been converted into a comprehensive domestic data mining program quicker than David Addington could look up from his desk, sneer the words “unitary executive” through bared teeth, and promptly resume work on his on-again, off-again project penning an extensively cited position paper arguing for the constitutionality of cracking detainees open at the sternum and discerning the contents of their minds through the ancient art of haruspicey? Even if their overreach was exposed and largely rolled back in the coming years, its very existence would breed enormous distrust and even fear of the government. And of course they’re would be lurid tales of specific abuses. You’re a dyed-in-the-wool liberal from what I can tell, and you’re arguing that there are other greater injustices in more dire need of redress than this. Well, as a lefty I imagine a lot of your solutions to those problems originate with an involved and responsibly led federal government. But who trusts in the good intentions of a government that’s constantly, egregiously lying about what it has done in the name of it citizens? Who trusts a government that behaves as though it doesn’t trust its own citizens? I dunno man, I think for the cause of liberalism to remain compelling, transparency is an absolute requirement, and to this shit just seems to demand a greater and greater degree of secrecy. It does our work a disservice and I don’t like it.

            • Hard to say I’m blithe and unconcerned, and then in the next phrase acknowledge a “theoretical” threat.

              There will be government monitoring of the internet, same as phones, with an emphasis on overseas communications. Certainly, that is inevitable and logical. Nothing wrong with the government going to public postings, of course. But as I have said, interpersonal communication should be private to a comparable extent that telephonic data and content are now private. Is that true under the law now? No. Can it be made true given that e-communications and metadata are often the same thing. Uncertain.

              Will PRISM morph into a domestic surveillance tool to access the private communication of Americans. We all hope not. That would be a greater intrusion into privacy as if tht pile of metadata in Utah were harvested for info on specific citizens.

              Is it conceiveable that the government might one day argue that while they are not going to look at any data from all American internet traffic for a period of years, while at the same time run select suspect e-communications through that huge haystack and look for communicative links, and only then, get the legal authority to look at the e-content — comparable with the programmic claims for this Verizon data? Maybe so. I can certainly see an argument for that and I can certainly see it being done in a way that respects the privacy of American internet use. Just as I can also see the potential — the potential — for abuse.

              How many other ways are there to say this?

              • Well, this is getting kind of a silly. It’s clear that our individual preoccupations are focused on different sides of this issue, and that is what it is. The one thing that’s still bothers me, though: you profess this feeling of foreboding at the thought of terrorists turning our most lethal weapons technology back upon us, and you’re incorporating that feeling into your argument that it is incumbent upon us to exercise the full breadth of our own technology to combat the possibility of a truly horrendous biological/chemical/nuclear attack. But by your own admission an attack of that scale isn’t necessary for extremists to achieve their objectives. They don’t need to kill millions of Americans by detonating a thermonuclear in the belly of the brass bull on Wall St. because it’s not about the fucking body count. It’s about the blind fury with which we respond to it. The countless, incalculable harms we inflict upon ourselves in our panic and fear. You’re talking about leveling this massive technological mechanism against fanatics whose purpose is crude and simple and requires nothing more than makeshift explosives and hate to achieve its ends. These guys can truly go to ground and still find new ways of killing the 3,000 or so Americans it seems to take send our democracy carombing across the planet in a fog of bloody cataclysm. I could maybe start to see where you were coming from if terrorism needed to evolve along with the societies it targets, but it doesn’t. It doesn’t need to be more destructive because psychologically we’re not any more prepared to deal with the fallout from it being just as destructive as it’s been in the past.

                I’m sorry if I’m being obstinate. I know you’ve definitely got other things to do. But if terrorism is more about fear than it is about killing, then I simply can’t see any better way of a country admitting it is scared than acknowledging right off the bat that its evolved and complex systems of law and enforcement are insufficient for addressing the problem of terrorism. These guys are thugs, and we’ve never needed anything like this in the past when dealing with thugs.

                • Terror is definitely more about fear than about bodies. Albeit you must make a notable number of bodies in an appalling way in order to achieve sufficient terror. Remember, this is indeed a United States that can comfortably tolerate the death of a half dozen people by handgun violence in a mass killing about every week or so and not even flinch. We have set a moderately high bar.

                  The fact remains that while terror on American soil has been startling at points, but scarcely even sporadic, it is reasonable to consider what we might do, policy-wise, if we were subjected to a higher rate of incidence. We are not Israel. We don’t live in that neighborhood and we are unaccustomed to manifesting ourselves as a tiny Sparta. All the more interesting to note that a campaign of bus bombings and mass shootings in the Jewish state managed to topple a coalition government and end a once-popular peace process. The bombs and shootings, when they reached a certain level, did not create an existential threat to the Israeli state. It did, however, beget Netanyahu and an altogether different foreign policy. And again, ours is a far less Spartan culture than Israel.

                  Perhaps we are going in circles, Gavin But I don’t think I’m imagining too much to worry about the net effect on our foreign policy should we be hit by a major act of terror. The experience of our recent, unnecessary war of choice evidences the fact that I am scarcely guided by my own fears only. Just as I worry about more real and substantive affronts to privacy and civil liberties should a major terrorist attack ratchet the fear up further. Especially, if anyone makes a case, credibly or not, that we weren’t as proactive as we might have been because of concerns over civil liberties. That may infuriate you; I am guessing from your tone that it will. But I am trying to assess real-world possibilities here.

                  By contrast, you seem to be looking back at what hasn’t happened and declaring that it is ridiculous to contemplate that it therefore won’t happen going forward. I’m reminded of a scene from Vonnegut’s “Slapstick” in which the King of a dissipated post-apocalyptic American Middle West looks up from his textbook at a visitor and repeats the canard that “those who can’t remember the past are doomed to repeat it.” And the visitor, our narrator, rightly goes batshit crazy in his own head at the King’s fatuous pomposity, thinking of all the fresh and unexpected trauma that befell the globe — things that had no perfect precedent in the past — and therefore could not be imagined by anyone unwilling to extend either hope or fear beyond the strict limitations of all that came before.

                  • No. No that’s not what I’m doing at all. My purpose in looking back at some of the more salient failures in our national security apparatus’ fight against terrorism was to point out a recurring problem, which is that analysts and law enforcement officers have repeatedly overlooked critical information about specific threats, either due to oversight, information overload, or simple incompetence. Look at the Ft. Hood shooting for fuck’s sake: Maj. Nadil Hasan was in regular e-mail contact with Anwar al-Awlaki throughout 2008 and 2009 using an account the surveillance of which had been authorized by a FISA warrant. He’d been the subject of an FBI investigation and a probe by the Joint Terrorism Task Force. By late 2009 his e-mails to al-Awlaki routinely contained phrases like “I can’t wait to join you” in the afterlife. Umar Farouk Abdulmutallab, the underwear bomber, also exchanged regular communication with al-Awlaki, who was under extensive surveillance at that time as well. The Brits fucking told us they’d intercepted a phone call between the two in which Farouk pledged himself to Jihad. His Goddamn parents filed a complaint about their son’s radicalization with the fucking CIA. What’s my point? There were red flags all over the place! They were red flags that actually got raised! In the end either someone up the food chain ignored the warnings they received or their reaction to those warnings wasn’t quick enough. But that’s my fucking point. The whole purpose of phone record collection and PRISM is to parse huge quantities of data and raise red flags like the ones I just mentioned. But there are already SO GODDAMN MANY that the really obvious ones are getting missed. What are there, like, 37 discreet national security and intelligence agencies under the federal government’s umbrella at this point? Each of them firing off multi-page bulletins on interagency networks 25 times a day, all of them freighted with dire predictions about the meaning of this intercept or that. Read any interview with a functionary in the NSA, CIA, DHS, etc. and you’re sure to find a description of a brilliant but harried investigator getting 40,000 e-mails a day, with a desk awash in as many ALERT memos that go almost entirely unread. How did this happen? It’s a product of the exact psychology that you seem to be arguing for, which says that anytime a proposal for a new piece of technology arises we should first ask the question “could it be useful in the fight against terrorism?” and if the answer is “yes” then we should just build the motherfucking thing because NEVER FORGET. But the answer is never just “yes.” The answer is always, “yes, if it is properly integrated into existing systems and operated by competent personnel.” The thing is that if those two conditions are not meant, that doesn’t mean the technology is simply a wash. It can ABSOLUTELY be harmful. It can feed into the chaos attending what is now a trillion dollar institution that has quadrupled its number of employees into the near millions over a single decade.

                    Part of me feels like your experience as a crime reporter in Baltimore is inflecting your opinions here, but not in a good way. The Baltimore PD is pretty fucking resource poor, as far as law enforcement organizations are concerned. I’m sure you over the years you became quite accustomed to watching police officials plead frantically for access to far simpler technology than this; for anything really, even if it was just a few more hypertensive Irish drunks with guns and badges. ANYTHING. Well, resource poor is something the national security network most certainly is not. It doesn’t need more shit. It has way too much shit already, and at least in the short term it looks like some of that shit is actually compromising its ability to do its job. Because every fucking time we get hit, it’s the same story. Poor interagency communication. Someone wasn’t trained well. Someone was overworked. Someone shouldn’t have had his or her job in the first place. Action was going to be taken but there were bureaucratic delays. I understand your argument that failing to invest in technology with positive potential is risky, because it can lead to the assignment of blame in the event of subsequent attacks. But if that technology is being advanced at the expense of fixing ongoing problems structural and personnel problems, burdening already overtaxed analysts, and possibly compromising the very security it promotes? What then?

                    Listen, I apologize for getting so shrill about this. I think at the end of the day there’s a divide between our positions that can’t be reconciled. It’s my feeling that privacy rights—or, fine, “expectations”–should be abridged only in cases where that abridgment is absolutely necessary. It sounds to me like you believe that the existence of chemical, biological, and nuclear weapons in world, along with terrorists who’d love a chance to put them to nefarious use, is proof of that necessity. I disagree. I think there are countless, well-tested investigative and enforcement strategies that put to good use will bring the probability of a catastrophic terrorist attack as close to zero as possible. You think that operating under that assumption is simply too much of a gamble. That the hypothetical “but what if you’re wrong?” scenarios are too horrible to risk. And I disagree. And I don’t think there’s really anywhere we can go from there. Which is okay.

                    All that said, I really appreciate your willingness to have this discussion with me, and with everyone else who has commented on here. As an artist whose work has commented extensively on the nature of American law enforcement—both its flaws and its strengths—your alacrity in presenting your views on these issues in a forum like this, and then sticking around to defend them, is both reassuring and inspiring. You’re responsible for some of the most influential television programming that’s aired in my lifetime, and it’s nice to know that the person making it is so committed to hearing and then parsing every side of every story. You are, as you’ve said, an argumentative prick, but I think there’s a certain modesty inherent ub the fact of your being here and doing this in the first place. So thank you.

                    • Gavin,

                      I’m gonna let all that stand because you’ve worked hard and the last word is yours on substance.

                      On rhetoric, let me ask you: In all of our back and forth, have I asked you who you are, or your affiliations, or what you did for a living, or about the influence of your life’s experiences on you? I have not. I have taken your arguments at face value.

                      So, why do you feel entitled to take what you think you know about me and apply it to what you perceive to be flaws in my argument, or rather, why I make the arguments I do? Because I cited an example of a Baltimore III wiretap at the head of one post. I did that not to assert anything other than to point out, as a fundamental given, that this metadata has been without Fourth Amendment protection for all of modern U.S. case law on telephonic intercepts. That’s it. I’m not telling anyone what they’re arguing and why is because of who they are or what they do or where they stand politically, or socially or whatever. I’m arguing fact. Or addressing the rhetorical presentation of fact. And I try very hard to be rigorous, out of respect for the argument.

                      Try to join me in this the next time. The argument will go better and reach a better place, faster, regardless of how it ends. I promise.

                    • Hey, listen, David, I apologize if I offended you in hypothesizing about the ways that your personal experience may have shaped your views on this issue. As I sit here thinking about it now, it strikes me how invasive it was of me to speculate that way. The truth is that as a fan of yours I know a lot about you, even though you never made the choice to disclose any of that information to me personally. Some of it, in fact, you probably never even chose to reveal publicly. Such is the plight of being a public figure, I guess, and I don’t envy you it one bit. What I’m saying though is that I can see how frustrating it must be to have a stranger on the internet culling that information to undermine your objectivity/authority vis-a-vis a specific issue. It was overfamiliar and unfair of me to do so, and I apologize. It’s my hope that this hasn’t poisoned the rest of our discussion in your eyes, or worse yet discouraged you from engaging with me like this on other issues going forward. Like I said in my last post, this whole conversation has been a unique, exciting, and inspiring experience for me, and I’m more than happy to temper my more accusatory and presumptuous argumentative proclivities in order to keep this line of communication open. The truth is I should probably do that anyways.

                    • I’m not offended, Gavin. Offended is a big word for me, and I hope for other people with a skin.

                      But my eyes glaze when people try to first figure out who is making an argument and then, from that point, assess the argument. Keep saying: Jesus Christ might still fail his algebra exam and Al Capone could write the finest civics text to date. It doesn’t matter that Christ is immaculate born and the Messiah, and it doesn’t matter that Capone lived the life of a thug. For determining their intellectual output, only the algebra test and the civic text matter.

                      I don’t care what you cull, or what you think you know about me, my motivations, my affiliations, or my music collection. Content, on its merits. That’s what makes a legit debate. Content, content, content.

                      A lot of people didn’t take logic or rhetoric in college or, even high school. It’s a shame.

                    • Hey now. I’ve been trying to be conciliatory here and you’re talking down to me like I’m some kind of putz.

                      The “first” thing I did in this exchange was not an attempt to figure out anything personal about you, or speculate in anyway about how your background might be inflecting your opinions on these issues. The single time I mentioned that possibility was in the last of 7 posts in a long and complicated discussion, and when I finally did it was because, respectfully, you opened the door:

                      “I covered crime carefully for a decade an a half. I know that crime prevention and suppression efforts can’t stop all criminal activity, but that citing such is a trivial argument against prevention and suppression.”

                      Your words. It looks to me like you’re extrapolating from your experience covering a small corner of the American law enforcement superstructure a larger truth about that superstructure as a whole. That truth may be simple, and it may seem obvious. Doesn’t matter. Here and elsewhere in the comments you’ve cited your experience as a journalist covering crime in Baltimore as an assett allowing you uncommon insight in a discussion about global crime. Which is fine. It’s good, in fact. In a lot of cases I will grant that your accumulated professional knowledge affords you a distinct and incisive perspective on any number of political issues. But if you’re going to cite it as an assett, can I not question the veracity and tenability of that citation? And if I think I see a pattern in your argumentation which involves your extending narrow personal experience to a broad question, can’t I bring it up? They way you’ve described my rhetoric makes it sound as though a said something like “David Simon has a weird foot fetish and therefore his opinions about government surveillance shouldn’t be trusted.” Well, unless your eyes literally glazed over and you completely stopped reading what I wrote as soon as you saw the words “I think you’re letting your experience…” you cannot in good faith assert that I said anything of the sort.

                      I mean, if you’re someone as concerned with content and truth as you claim, you haveto allow some room for the discussion of bias. Even your own. If you’re gonna let your eyes glaze over every time someone tentatively and respectfully suggests that you examine how your own pre-existing impressions might be affecting the process by which you’ve arrived at an opinion–especially when in other contexts you’ve already conceded that they do–well, shit. That’s not very journalistic of you.

                    • Gavin,

                      If my trying to apply the rules of rhetoric/logic to this dynamic is “talking down to you” so be it.

                      But your reply indicates that you still don’t understand the parameters of ad hominem. By pointing to that quote from me and thinking it legitimately opens the door to argumentum ad hominem, or justifies such, you’ve revealed as much. So, yes, at the risk of sounding even more pedantic, I’m gonna keep trying.

                      Let’s pretend this is a courtroom and a witness is giving testimony. The testimony is about American League baseball, 1968-1974. A point of contention arises over Al Kaline’s career. The witness is queried about why he should be relied upon to be the defining testimony as to Mr. Kaline and his life. And the witness says, as a matter of fact, I was born in South Baltimore and I played little league a year behind Kahline over off Fort Avenue. I saw him play at Southern High and later, after he went to the Tigers, I rooted for Detroit. In fact, I’ve was attentive to Mr. Kahline until the day he finally retired. Ok, if not an expert witness — he could certainly get something wrong — we’re gonna believe this guy more than any ordinary putz when it comes to a question like say, what was Al Kaline’s career batting average.

                      That’s the equivalent of: “I covered crime….” It’s me saying, I was actually present and paying attention this. I know something about it and there is reason to believe I am speaking first-hand. Expertise in any argument is expertise. Citing such is legitimate, which is why a courtroom establishes the bona fides before accepting expert testimony. It doesn’t mean the expert can’t be wrong, or cross-examinaned, but it’s letting the jury know, hey this lab technician from the FBI actually knows something about paint chips, or DNA or whatever.

                      If you are comparing that with ad hominem argument, you are guilty of another fallacy, which is equivocation.

                      An ad homimem argument would be, “I have been thinking about how it must have affected your thinking, or your viewpoint, to have admired Mr. Kaline so. By virtue of your childhood association and your particular attentiveness to his career, you are clearly unable to maintain your perspective on players other than Mr. Kaline, or baseball as whole, or the fact that Willie McCovey was a heulluva hitter. In fact, you Al-Kaline-lover you, I’m not sure you’re in any position, by dint of your experience, to step to my argument about Duke Snider being a better all-around player than Willie Mays.

                      There is no penalty for saying you studied something, or experienced something, or know something because of your experience. You can still be wrong, or argued with, but it certainly does lend credence to certain positions. We recently had a prosecutor who did Title III’s on this site. His experience is relevant and he cited it. It doesn’t win all arguments, but it adds credibility when it is legitimate. But using someone’s background to disqualify their arguments because you speculate that it must result in certain positional tendencies or biases — that is ad hominem.

                      Now, if you think for example that there is no correlation between my claimed area of expertise and the issue at hand, then say so. Just because I covered crime, that doesn’t mean I have any particular insight into NSA computer capabilities or how they do what they do technically. If I try to claim that, I should have my head handed to me. I haven’t claimed it. I know as much about the actual digital science underlying the technology as I read in mainstream news accounts. And I understand two thirds of that. That’s all. But it does mean that I have some sense of how investigators would use telephonic intercepts to proactively pursue criminals, or the most effective and least effective methods of crime suppression. If you think there are differences between my experience and the current counter-terror dynamic, point them out. I am arguing that there are similarities that matter. We can argue over when someone’s credentials enhance their argumentative authority. But if we try to decide something about who somebody is and why they would argue as they do from their individual affiliations or experiences — nope, ad hominem.

                      I hope this helps. Pedantic or not.

                    • I really think you ought to go back and re-read my original post. As far as I can tell, you’re rankled by this particular sentence:

                      “Part of me feels like your experience as a crime reporter in Baltimore is inflecting your opinions here, but not in a good way. “

                      The place to start here is with the previous paragraph preceding that statement. That paragraph was dedicated to dissecting and disputing an argument you’d made in several of your prior responses. That argument, as I understood it, was that new technologies like PRISM with potential applications in the war on terror should be developed zealously by default, just in case they happen to live up to that potential and singularly prevent a terrorist attack. Said argument was predicated on the idea that if such a technology were rejected for development and a massive terrorist attack then occurred that the rejected technology could plausibly prevented, the political fallout would be unimaginable. So, if you now go back and read what I wrote, you’ll see that I make several points about why, in the context of our contemporary national security state, the overdevelopment of new technologies could actually be harmful to our capabilities in the war on terror. You can agree with those points. You can disagree with those points. I don’t care (I mean, I do care, I’d love to hear what you think, but I don’t care whether you agree or disagree; that’s your prerogative). But if you actually take the time to read them I think the purpose of the next ‘graph becomes pretty obvious. When I wrote :

                      “Part of me feels like your experience as a crime reporter in Baltimore is inflecting your opinions here, but not in a good way. “

                      I was indeed speculating as to the premises for your original argument re: technological development and the security state, but I was not making any assertions as to what those premises actually were, and I certainly wasn’t categorically dismissing your ability to speak with authority on those matters because you were a journalist. I was taking a guess at what you were thinking, and inviting you to correct me or clarify anything I’d said inelegantly. Was this venturing outside the realm of my absolute knowledge? Most def. Is this sort of third-party speculation sometimes necessary in exposing the structural bias of one’s own ideas to oneself? I mean, it is for me. Maybe it isn’t for you. If not I hope you’ll pardon my presumption. Would I have included that paragraph if I were writing a dissertation, or an op-ed in a national publication? No! I also wouldn’t be using the word fuck so much. But we’re two guys talking on a blog; the stakes are low and the opportunities to make corrections and revisions are limitless. It’s a setting where attempting, even if incorrectly, to see things from one another’s perspectives should be met with accommodation, not disdain and a multi-thousand word exegesis on argumentum ad hominem, which, however elucidating, is totally misdirected and more than a little chiding.

                    • Gavin, I’m gonna let it go. We’ve gone circular. And there’s more interesting news tonight on the NSA front.
                      Check the fresh post.

    • Ah, sorry. I’ve not made myself clear. I definitely did not intend to imply that you were deliberately constructing straw men just to fuck with us bleeding hearts. I think you’re bellicose and a little dismissive, but I know you’re committed to trying to have honest discussions here. I simply wasn’t sure whether you were assuming the necessity of programs like PRISM in order to have a discussion about how to best implement them (that is, after all, the phase of the process in which we find ourselves), or whether you actually believed that necessity existed. I was inferring the latter, but I wanted to acknowledge that that inference might have been a misinterpretation of your beliefs. Anyways. Moving on.

      “I can only tell you it is a credible government’s responsible to do what is plausible to attempt to be proactive. Citing terror events and declaring loudly that hey, no one prevented those, tells us nothing. We don’t know all that was prevented, and there are myriad reasons why something might not be prevented. None of that is evidence for inertia as policy. I covered crime carefully for a decade an a half. I know that crime prevention and suppression efforts can’t stop all criminal activity, but that citing such is a trivial argument against prevention and suppression.”

      You’re misrepresenting my argument here. I recognize that terrorist attacks will always occur, so long as those attempting to perpetrate them believe that they’ll achieve a desirable result. In fact, that’s precisely why I think erecting a massive national security state around our irrational fear response to terrorist violence–while doing nothing to address the psychology that undergirds it–is stupid and self-defeating. Still, that’s not the argument that I want to have here. My point wasn’t that terrorist attacks are always going to occur, so fuck it let’s just go about our business. My point was that of those terrorist attacks which slipped through the grasp of our intelligence and law enforcement apparatuses (apparati?) and were brought to fruition or nearly so, the common theme is one of preventability, not due to lack of resources, intelligence, or technology, but rather due to incompetence and poor tradecraft. You want to talk about these programs in terms of pros and cons–what we give up and what we get in return. Well, from that slim portion of our national security infrastructure that’s visible to the general public, it looks to me like a massive deluge of unsorted data is about the last thing our security services need. In fact it looks an awful lot like we’ve yet to find an effective way of handling the information we have already.

      Look, I’m willing to account for the possibility that information technology could potentially be as dangerous in the hands of terrorists as it is in the hands of a poorly supervised government. Fine. I find it a little more unlikely, since making destructive use of that kind of technology generally requires a) education and b) vast computing resources unlikely to go unnoticed and difficult to acquire if you’re just a strapping young math prodigy from Tora Bora. But I’ll grant that it’s possible. Even then, are the terrorist operatives actually capable of making pernicious use of that technology the ones whose GPS coordinates you’re gonna pinpoint by harvesting their Gchat logs? And fuck, are the kinds of terrorists who are exchanging incriminating information on web platforms whose user agreements stipulate their own compliance with user information requests from the US government really the kinds of criminal masterminds we’re concerned about successfully evading traditional enforcement? I mean, I’m getting off topic here I know, but as you’d say: c’mon.

      And if you’re not talking about the realm of information technology; if you’re talking about nasty advances in biological, chemical, and nuclear weapons when you refer to the enormous destructive capability of modern technology, well, great! But that doesn’t have fuck all to do with PRISM or metadata. If you wanna take a trip down to Congress with me and lobby for global arms reduction and substantive investment in securing current stockpiles of WMDs, well, shit dude, I’ll bring the scotch if you bring the paper bags of unmarked nonsequential hundred dollar bills. But that’s kinda the point. There are all these tried and true methods of crime reduction that are totally scalable and don’t raise anyone’s Constitutional hackles. Who can argue against securing arms stockpiles with a comparatively modest, one-time financial investment? From what I understand a lot of the CIA’s success in uncovering Al Qaeda’s structure and taking out its component parts has been achieved using information obtained through a pretty classically run criminal informant system. They pay people on the ground for information and a lot of that information checks out. Who can argue with that? So we’ve got all these things that work and that we understand well from a pro-con perspective. Wouldn’t it be better to exhaust those resources before we move on to shit we don’t understand possessed of such an obvious downside?

      I get the idea that generally it’s advisable to be proactive about counter terror work because the stakes are so high. I guess what I’m trying to get you to consider is that from the evidence we can see it looks arguable that being proactive in this particular way could ultimately be counterproductive; that we’re giving our intelligence services new toys when they’ve routinely showed themselves to be incapable of making good use of their old ones. Sure, we haven’t seen behind the veil, and there are plenty of successes and near failures that I’m sure we don’t know about, but I think it would be fatuous of us to just accept these people’s claims of PRISM’s necessity and unique effectiveness. That’s the approach we took re: “enhanced interrogation,” rendition, indefinite detention, and fucking drone assassinations. These conversations shouldn’t start with “can we do this in a way that reduces risk to an acceptable level?” they should start with “do we need to be doing this at all, given the risk it poses?” And frankly if our government refuses to make even a pretense of engaging in and facilitating that discussion, then fuck it. No cool shit for you.

      Also, how cool is it that I’m venting spleen at David Simon right now, and he’s venting spleen right back? America, man. Fuck yeah.

  • Mr. Simon,

    Some troll posted a comment here dismissing you as a “neo-Marxist-realist smart ass.” I thought insults of that kind were not acceptable on your blog. Why don’t you delete it so that there can be more space here for discussion that is actually worth your attention? With all due respect, I really cannot comprehend why this kind of insult would be allowed to remain in the comments section of your blog.

  • I like what you said about the nature of terrorism. I am much more aware of safety and my surroundings since 9-11. Our level of awareness of danger is interesting in this country. Just consider home construction. At least here in Texas, most homes are easily accessible to passerbys. They can knock on your front door and look through your windows. On occasion there might be a fence around the home’s perimeter, but for the most part homes are quite accessible. It is not like that when I travel to Colombia ( I referenced in an earlier comment how that country was ripped apart by terrorism.) Homes are built like fortresses there. There are bars on all the windows. Often call boxes require a guest to announce themselves before they step foot on the property. People’s orientation when they step out on the street is: someone is going to hurt me or someone is going to try and take my things. I wonder how long before construction begins to change here? Nice Q&A btw.

  • We do not need to wait for misuse of the data, as the very existence of the data is a misuse. There are some weapons you do not want ANYONE to have, even if you think they will probably be used responsibly. I know my comments are more likely to be treated seriously if i write with a moderate tone, but I am alarmed by how much most commentators are UNDER-reacting to this.

    With metadata from multiple sources kept forever, anyone who EVER had an affair, a drinking problem, a gambling problem, or any number of other secrets could become subject to blackmail or smears. This is not paranoia—computer analysis of the patterns of my life and of the lives of those with whom I have contact is that powerful.
    Even if my own life were completely boring, my liberty would suffer from politicians, reporters, and businessmen all around me being subject to that pressure.

    Beyond blackmail, blacklists could erode freedom even more. Imagine an emerging political movement being viewed as a “risk to society”. In a not too different environment, either the Teaparty or Occupy Wallstreet movements could have been viewed that way. All of the people who had EVER had an association with people in the movement could be trivially identified. Would there be a risk to their ability to get security clearences? To fly?

    Yes, we are still a free country. But I do not want that to depend upon the good will and morality of our leaders. Even today, incidences such as the use of cyber-terrorism laws to expose David Petraeus’ affair suggest a too authoritarian balancing of security and freedom by our leaders. Al Qaida may wish me much more harm than does my government, but my government has much more capacity to inflict harm.

  • 1. Can we remember that you are making all these arguments about the NSA programs because of and in reply to the fact that Ed Snowden leaked us citizens information about them? And that what you are doing then adds up to a) deriding (and worse) Snowden for that leaking; and b) defending the programs? Can we then acknowledge that you trample all over both of those things – repeatedly – by admitting that what the NSA is doing *might indeed be* very bad, if, for example, the programs were abused?

    2. Can we then remember and acknowledge that much of modern human history is taken up with ways to prevent governments from abusing their power? That we Americans actually had a revolution because of that, and broke away from our abusers, and made ourselves a shiny new country – and that some of the best minds in history struggled mightily then to form that document we call our Constitution…

    …this part needs its own little stage…

    …and that much of that document – our very founding and defining document – is taken up with ways and means to PREVENT OUR OWN GOVERNMENT FROM ABUSING ITS POWER?

    Can we do that? Are you with me?

    3. Can we then say that someone, let’s say you, David Simon, who says “IF” followed by “THEY WERE ABUSED” in a statement about whether or not these NSA programs were abused is being a colossally dumb, history-forgetting, history-denying, vacuum-making, ahistorical dumbshit?

    4. Honestly, someone who hears about these programs and is not immediately suspicious of government, and is instead immediately suspicious of the citizen who leaked the info about them – honest to God, David Simon, honest to Flying Spaghetti Monster God, that someone should be not be trusted with a large microphone.

    5. Sadly, sadly, sadly, that’s not the case. You have a very large microphone indeed, and your bizarre instincts and thoughts on this are being broadcast and absorbed far and wide.

    6. This whole numbering thing isn’t really making sense. Oh well.

    7. The ad hominems are playfully made. Please do not distract from the argument by focusing on them. You’ve been a real swell guy for engaging with us so thoroughly. Thanks for that. (But grow the f up. Please.)

    • I’ve not derided Mr. Snowden, nor have I praised him.

      He has, I believe, done some damage — I don’t know how much, honestly — to some viable counter-terror programming and perhaps, given what else he may reveal, there is some more damage still to come. He has, too, opened this window in which an important discussion about security and privacy issues is now taking place. Good and bad.

      As far as his ethics and his motivation go — not to mention the legal reality of his actions — I’ve actually been remarkably mute. My judgment has been largely limited to Mr. Snowden’s effect, and tacet as to Mr. Snowden himself.

      You on the other hand could embrace a little more self-control.

      • I really find that last part hard to understand. “Self-control”? What do you mean? I believe I have a very well-reaoned argument, about history, about citizenship, about government. I really wish you’d respond directly to those points.

        And I even very politely said the ad homs were in fun, and thanked your for engaging! Sheesh!

        • And my comment about self-control was in fun, too. You only like to laugh at others, not at yourself?

          • Little disappointed you didn’t publish my response to this comment. Gives a completely different impression of what occurred here. Making it much more favorable to you.

            That’s not cricket, David.

            • I’m sorry, what didn’t I publish?

              (goes back, rummages discard pile…)

              You mean this?


              I think you need to read that again. That did not at all come off as ‘in fun’. I do take your word for it, though, and appreciate you saying so.”

              I really didn’t think that was meant to advance anything that anyone here would be interested in. But hey, there ya go.

              • Your plainly insulting “You only like to laugh at others, not at yourself?” was meant to advance something for others?

                Whatever, David.

                • You know, Thom.

                  I’ve found that there are certain verbal ticks that people offer to excuse when they know they are violating civility. “Not to be XXXXXXX, for example, means you really want to be xxxxxxx but don’t want to be called upon it. And, “I know this is going to sound as if,” usually means, I want to say something that could reflect poorly on me for saying it, but I want to say it anyway.

                  And throwing up ad hominem and then remarking afterward, “I was just kidding about the ad hominem,” in that same sense, usually means I wanted to go there, but I don’t want to be called on going ad hominem. So I called you, using the same rhetorical dishonesty to see how you’d react. And when you became insistent that you were only kidding, I let it go, saying, well then, me too. But letting it go isn’t your style, apparently. Okay. Gotcha.

                  I’ll joke around and insult my friends, people I know, people who know my context and my person. I’ll enjoy it when they do the same to me, knowing their friendship. That’s safe. Online, in a forum, discussing issues with those whom I do not know personally, and those who often become heated and passionate when I decline to agree with their every point, I restrain my own humor to either sidelong shots at argument, or self-mockery every now and then. I wasn’t actually upset with your ad hominems — they weren’t notable — but rather it was your immediate, candyass non-repudation of “I was kidding” that struck me as horseshit. So I played that dynamic back to you. And what was good for the goose is too much, apparently, for the gander.

              • That would make sense if I had simply used ad homs and said nothing else. What I actually did was make an argument, and I think a good one, about how the history of governments abusing their power should make us suspicious of gov in this case (something you still have not responded to), and ended that argument by saying “dumbshit.” For fuck’s sake. Can you PLEASE pretend that I didn’t do that, and just respond to the argument?

                I was too familiar with you. From reading your comments I honestly thought you’d treat it as fun barroom banter. I apologize for that.

                • No worries. I merely replied in kind. But just know that running into a post festooned with name-calling, even under a banner of lightheartedness, makes it real easy to journey to the next post in the hope of a more civil argument.

                  I generally agreed with the core argument, actually and have indicated so elsewhere in different language. From one of my few remaining heroes, Izzy Stone: “All governments lie.” Some lies are required for national security and statecraft, many more are to obscure the dishonesty and failure of those governing. I accept that as the given terrain, and actually, I think myself one of the least credulous people I know. It is wise to approach every governmental explanation with a grain of salt, and to seek more detail and whatever corroboration one can find.

                  Right now, I think my government is lying about the situation in Gitmo, about the militant-to-bystander ratio in the drone kills, and about purposely seeking to chill a free press through an unprecedented pursuit of reportorial sources — just to name a few. And I think my government is certainly capable of compromising the rights of individual Americans at certain moments for political and national security expedience. All that I believe.

                  But knowing what I know about phone metadata, about communications law and about the NSA program, and having heard what congressional leaders are being told about that program, I believe that this metadata pile is going to be used to do exactly what they say it will do. And I believe it to be — in actual practice — one of the least invasive and legal acquisitions of metadata I can imagine. And for all the instances in which my government will seek phone metadata for authoritarian overreach into the lives of Americans, I believe they can and will do that through the ordinary, existing channels, which remain entirely porous.

                  Being suspicious is, up to a point, a natural and reasoned stance when considering any government. Allowing that suspicious to become so overwhelming as to crowd out all other fact beyond that natural suspicion isn’t quite so reasoned. And the mere fact that government attempts to keep something secret, while often an indicator of malfeasance, is not necessarily such. Sometimes, a secret is elemental to its value. And all governments, even good ones, have secrets.

                  • I truly appreciate it, David. Your refusal to hold a grudge, and quick return to the subject is way too rare on the internet – thank you again.

                    I guess I object to your overall arguements primarily because they appear (at least to me) to be trying to heavily downplay the *whole* story by focusing on one technical aspect/thread of that story. We don’t understand all the implications of this leak (and we haven’t seen all the info, or at least we’ve been told), so attempts to downplay the whole story sends up red flags for me. Even if I agreed with you on your angle, which I don’t, the attempt to downplay the bigger story I find troubling.

                    I look forward to reading your thoughts when more comes out.

      • And by the way, because of the leaks we already know about one very likely illegality: Clapper’s lie to Congress. That you and so many still, knowing this, defend the programs and condemn Snowden is hard to get.

        Saying Snowden “has, I believe, done some damage” isn’t derision, you are right. It’s worse, really, but you are right.

        • I would be more interested in your addressing this comment. The fact that Snowden has already shown us that the head of the NSA lied to Congress – that’s a pretty big weight on the “good” side of what Snowden’s done. Especialy against your perfectly weightless claim that you *think* he’s done harm.

          • I will be interested in Mr. Clapper’s coming explanations. If he lied to the intelligence committees, he should resign. More to come, I suppose.

            You seem to really want me to affirm Mr. Snowden’s behavior and actions. I can’t do that. I can catalogue negative consequences from what he has done, albeit I am unsure just how negative, as I am not close enough to state secrets to know the value of all; and the positive consequences, which thus far involve opening a window into a world that needs some air and some debate. The measure of each? None of us honestly knows yet, although people who believe one thing or another will surely shape all into heroism or villainy. But when it comes to Mr. Snowden, I’m willing to watch and wait.

  • Here is an angle on this question/issue that I haven’t heard any discussion about anywhere. I’ll stipulate the essential points of D.Simon and this thread. But why does it take “every single goddamn piece of information’ to do this work? All the calls, all the texts, all the websites, or whatever it is that is being sucked up by the billions per hour as is reported. (My answer: it does not.)
    So if you are looking for terrorists or any other such worthy goal, why do you need to entire record of, say grandma? It simply is irrelevant. And if you must collect it in order to determine you don’t need it, then when such a determination is made why not then delete it? What is the purpose of keeping all that information when it is manifestly irrelevant to anything pertaining to national anything, much less security?
    And not only grandma, but teenagers, and D.Simon, and me, and probably you. There is next to nothing in this haystack that is actually relevant to the stated needs and goals. As such, why keep the hay when it is clear there is no needle?

    I am reminded of an incident at the airport when the lunacy that is the fear of “terrorists” was being instantiated in our national psyche : an older couple, must have been in their 80’s, were randomly targeted for a more thorough examination. I watched with disgust and also sadness as the authorities tore into the bags and stuff of this slow moving, bewildered couple. I still can hear the plaintive sounds of the old woman “What is going on Harold, what did we do….”. The next person pulled out of line was wearing a turban. No surprise there.

    I’ll grant we need to find and disrupt, stop if we can, that faction of people who are terrorists. Full Stop. Once that objective has been met, what other rational is there for keeping this data essentially forever?
    I suggest it is this point that is the underlying basis for those (like myself) who see a bit more sinister purpose in these policies. There is more that could be said by way of example. I’ll leave it for the moment.

    • Now, you’re actually doing damage to the anonymity that this NSA program promises to the FISA court. You’re actually going backwards and guaranteeing the average American less privacy, once you start sorting the data for non-probables.

      Think about this way: NSA is basically trying to construct a haystack in which they will then search for their needles. The haystack is every damn phone call made by every damn phone number over a period of years in the U.S. and from the abroad, to and from the U.S. They find one needle in Uzbekistan and they rush it to the haystack and begin to run it through the data base. They aren’t omitting “grandma” or the “fourteen year old” or anyone else who isn’t a likely candidate because to do so, they’d actually have to get in there and identify individuals — and at that point, privacy is more compromised than if they are just running through a pile of numbers without any human intervention in the process.

      If they were to follow your advice and create a limited data base of “possibles” who might engage with terrorists, what would that data base look like? Ethnically profiled? Geographically profiled? Based on religious affiliation? All of a sudden, a neutral data base is now targeted in ways that the FISA court, in approving this program, has not authorized. And in fact, if we follow your logic, we’re introducing human judgments about who should endure even this modest affront to privacy, and who should be spared. If we are all in the data base, then it is a neutral investigative tool — and the computer power to run the entire population is there regardless. If only suspected Americans are in the data base, something legally problematic has happened in the creation of that data base. It is now something quite different from what the FISA court approved, and what congressional intelligence committees were informed of.

      As the process now exists, no one in the government learns who anyone in the data base is until a phone number is linked with another suspect number. Then and only then, a human identity is revealed and police work — either to implicate or exonerate — begins. With your “solution,” the identification, investigation and segregation of certain citizens begins so early in the process that it would invalidate the government’s arguments as to the non-invasive neutrality of the data.

      • I take your point, and it is a good one.
        What it surfaces is underlying contexts or points of view about this matter. As I see it your point is based upon a certain trust that what is said about how this data is being used is indeed how it is being used. If this is the case then your argument is conclusive.
        At the moment we don’t have any data or ‘proof’ that anything more is happening with this data, so we have to go with that I suppose.

        What I realized was that my context, or pov , is that it is unlikely that this is the case. Or, if it happens to be the case now it will not or even cannot continue to be the case into the future.
        Data of this nature, if it exists, is simply to powerful to remain boxed up when someone in power wants it. Even if there are laws now, and even if they are being perfectly followed – a proposition that seems difficult to sustain even in light of other recent issues concerning Government v. Press – even if that is the case now, it wont be in the future.

        It is the “…then and only then… ‘ assertion in your argument that I challenge. Any number of examples past and present are sufficient to make my point that Power will not long allow something so powerful to lay dormant.
        I think I can safely cite E.Hoover/FBI and Nixon, perhaps even Cheney as examples of what might be possible of this level of information in malevolent hands.
        I know this takes the discussion off the particular of this instance and opens up the larger discussion of the nature of power, and the essential relationships of power to powerless, or, in constitutional terms the relationship of the Government to Citizen. I actually think this is the level that the conversation must be had in order to deal with the deep complexities of this issue. But that is a harder conversation to have, especially in these bifurcated days.

        So there is a conundrum. I accept that the data could be properly useful in some future event as you have spelled it out, and as others are also saying as the basis of the justification for having the data in the first place. (Sen Fienstein for example). There is a certain “Pre-Crime” aspect to this, as others have well articulated.
        I am not sure at the moment how to resolve this conundrum in real and practical terms. It is to facile to say : “delete it all” as one side would have it, and it seems a bit too hopeful to believe that it is really all that benign after all.
        I wonder if we will sometime find out that this data has been used in ways that we are not being told about sometime in the future. If and when we do it will not surprise me. I will be surprised if it turns out that everything that is being told us now turns out to have been the truth.
        I hope to be surprised.

        Thanks for the reply. I appreciate it. And I appreciate your having and allowing the level of exchange that you do here.
        I hope my reply adds to the conversation.

        • You are a sane, rational voice. It gives me succor to maintain this dialectic when I read stuff like that.

          I, too, doubt that any law enforcement asset can be used and not misused. I don’t know of one, right down to the 9mm on a patrolman’s hips. And the costs of misuse will be real, just as the cost of denying a legitimate asset to law enforcement and counter-terror operations will be real.

          The battle to rationalize and restrict the asset to its proper role will be quotidian and continuing, as it is at every point in society when communal aspirations and values collide. Anyone participating in this debate who speaks only of the asset’s value and ignores the potential for abuse renders himself a little bit useless. Anyone participating who speaks only of the asset’s threat and ignores the legitimate value of the asset to law enforcement is equally useless.

          I’m interested in the people who are using this moment’s argument to try to reconcile the two realities on practical terms. Especially if they are trying to do so through aggressive reform of the FISA process, in this particular instance. If you think the system is bad now, you need to remember what was there before the Church Committee. Now, we have secret courts and a national-security blackout save for the briefings to Congress. Then we had no courts and a complete blackout. Is it enough? No, and especially so given the new technologic capabiities. But any improvements will be systemic and not through pretending that an individual data base — redundant as it is for federal authorities who would want to use metadata to target people domestically — has no elemental investigative importance and is only there, ripening for abuse by a nascent surveillance state isn’t a rhetorical journey that is going very far, practically and politically.

          • This is the most intelligent exchange on the subject I’ve seen in several days of monitoring many sites and sources. Reasonable minds can differ over whether the existence of the “haystack” itself poses such a grave risk that it’s not worth the potential benefits.

            My personal view is aligned with David’s, that an enormous haystack is safer than a smaller one, that oversight involving checks and balances *can* keep egregious abuses from occurring, and that due process of law can be used to punish those who do abuse authority — as in any area of authoritarian overreach.

            Jonathan Glick provided a good example of what’s at stake here with a recent tweet: Imagine “Facebook, Google Help FBI Foil Mumbai-Style Attack on Disneyland. Amazing ‘Big Data’ Program Stops Massacre.” My response, the converse: “Twitter Refused to Turn Over ‘Big Data’ FBI Claims Could Have Foiled Mumbai-Style Attack Killing ___, Including ___ Children.” PR/political nightmare. With hindsight, did we allow too much or too little?

  • David, this now your third piece in a row where I’ve felt like jumping up from my chair and yelling “THANK YOU! Hallelujah, somebody actually understands this shit well enough to have an informed opinion!” (Granted the barista might look at me funny if I did.) It’s Inspiring how much FUD can be dispensed with once common sense, cool logic and, in your case, the wisdom of experience can be applied with circumspection. Even more so when explained in a lucid manner. You’re building a equivalent on this subject.

    I do have an actual comment after all that fawning. You mention the sensible idea of a FISA review panel. Are you aware of the Privacy and Civil Liberties Oversight Board that was formed in 2004 as part of the various responses to the 9/11 Commission findings? I wasn’t until I met and worked with former White House special counsel Lanny Davis, who writes about his service on that board at The Hill.. I’m curious to know what became of that effort, whether it petered out, its mandate was temporary, etc. On the surface, at least, it sounds similar to what you’ve suggested.

  • Great discussion. For what it’s worth, there is a already an appellate court that reviews the FISC rulings-but since FISC is ex parte (as, by the way, are ordinary warrant requests and grand jury proceedings), by design the review court only hears appeals when the government gets its requests at the lower court denied:

    One possible reform might be, as D. Simon suggests, to add an adversarial process/public advocate function at the appeal or maybe at the initial proceedings so that the court is briefed by counsel as to both sides of a legal argument–I would think this could be done while keeping actual factual information classified.

    • Garbage in, garbage out. You’re absolutely right. Long after the computer does its run, then someone competent and conscientious has to do their job. As with just about every other instance of law enforcement and national security. But all of that is true regardless of whether the NSA has the ability to trace suspect phone traffic from Chechnya. I’m not sure how citing all of the certain lapses and failures in our security apparatus argues against the specific use of specific data. The data itself is neutral; the performance of a government agency is not. Indeed, let’s address the failures in performance.

      • This is a more general problem: computer-piety, ascribing divine infallibility to the computer As a 60-year old software developer, nothing gets my goat faster than talking to an employee on the telephone who is computer-pious and will not consider any request on my part to use their own grey-matter because what the computer is saying obviously makes no sense.

        A concern more general still, along the same lines, would be political entities privatizing all the “technical stuff” and becoming deferential to the contractors they hired, who are assumed to know what they are doing, and what is worse, these decisions are protected by the shroud of secrecy.

        Edward Snowden, whatever one thinks of him, is one result of such processes. If nothing else, his whistleblowing has raised the opportunity to discuss this.

        • One can believe in the theoretical utility and neutrality of the data, and still conclude this data-gathering is a dangerous or at least unproductive idea.

          Precisely the point of that litany of examples in the DKos story was that the neutrality of data or the theoretically-lofty goals of a program are rendered biased or debased within a system guided by fallible humans.

          One report has it that some 500,000 private NSA/CIA/DoD contractors have access to this type of data. Imagine yourself the new partner of someone who has just gone through a bitter divorce with such a contractor. He decides to access and misuse the data to stalk her, and scare you away.

          Or imagine yourself a responsible environmental activist (many of whom are already being treated as assumed ecoterrorists) who comes to the attention of a virulent climate denier within the government.

          One might argue that all government and law enforcement and other forms of official power come with these risks, but we tolerate them. But many of us believe that the scale and depth of the data being collected creates an entirely different new category of risk to the innocent individual.

          Here’s an only slightly inexact analogy: We can’t forgive the GOP for racially-driven purges of African-Americans from the Florida voter rolls, even though their methodology for doing so is nominally data-neutral. By challenging the registrations of people with names similar to those of known felons, tons of legitimate voters—predominantly black Democrats—were tossed off the rolls in 2000. One doesn’t have to be Paul Harvey to know the rest of *that* story.

  • David – thanks for replying.

    It sort of seems as if you’re suggesting that I’m not in favor of preventing mass killings? I hope you’re not suggesting that.

    As it happens I’m very aware of the planes hitting the buildings as I was a couple of blocks from the WTC when the second plane hit. The bang was very real and the collapse of the building was really horrible and traumatising. It made me feel very supportive of authoritarian figures for a time despite my own political beliefs not lying in that direction.

    I flat out disagree with you on the “fundamental different purpose” or GWOT and war on drugs. That’s probably the irreducible nub. I’m sorry you see it that way.

    Not sure what you meant by the deconstruction comment.

    [ Aside –
    I think you and other “trust the Nat Sec, cos Daddy knows best” types should consider that that particular attack was possible not just because you had a relatively free society in the US but probably also because the people on the three planes that reached their targets were passive and deferred to authority while the fourth took action. This was one lesson of that horrible day.

    To draw the conclusion that the citizenry should be MORE passive, should allow secretive agencies with secret budgets to act with impunity inside the country’s border just as they act outside also seems wrong to me. ]

    • Andrew,

      You would do well to forward the arguments themselves. Characterizing others who hold an opposing point of view as “you and other trust the Nat. Sec. cos Daddy knows best types” is certain to leave your best arguments open to disregard. My point of view is more nuanced than that, and my arguments about the untenable secrecy of the FISA-process and the need to address actual and specific civil rights overreach, as opposed to say, the sum of all surveillance-state conspiracies, doesn’t warrant that kind of flippant characterization.

      Learn to argue to content, not to your opponent and you’ll enjoy yourself more in this small corner of the web, at least.

  • Generally, what you’ve said on this issue jives with my initial thoughts on the issue. Partly because, I work in database/web development in the finance industry. If this was a sweep of banking transaction metadata I’d feel a lot differently. Although such data would probably be much more useful.

    However, you do mention a subtle caveat that deserves to be emphasized more than it has. If this cell metadata is a viable intelligence asset then the case can be made for it to continue with appropriate oversight. So the question to me is, is this datamining truly valuable at the scope we’re talking about? Whether this program is providing a real and proveable intelligence benefit needs to be shown. So that it’s value can be assessed both from cost vs benefit and privacy issues vs security.

    • Agree. More of an argument for a national-security vetted, but independent and permanent oversight panel to the FISA process.

  • I’m not sure how many times I yelled “This. Fucking this” while reading this and the original article, but needless to say, I believe you hit the nail on the head and had wonderful references to my beloved city, to boot.

    I’ve worked on projects where if law enforcement overreach was even a *concern* the plug was pulled and the project was completely reevaluated. Perhaps I only experienced the positive side of that spectrum, but nothing pisses me off more than this culture of paranoid hysteria where everyone believes that the federal government has nothing better to do (or the budget. or the manpower. or the inclination) to listen to every single phone call and read every single email and build a case convicting “innocent joe schmoe” (because circumstantial evidence derived from metadata is certainly all it takes to send someone to jail). And this “scandal” where there is a. no clear evidence of misuse and b. an obvious lack of understanding of what “metadata” is by the public has possibly been one of the most annoying “news” pieces in years.

    Also, I may be remembering wrong, but this hasn’t exactly been a secret, for any point of time. Off the top of my head I can think of at least four NYT best selling authors who wrote about similar programs and some even had citations backing up their claims. Ugh.

    In short, I thank you. Now instead of arguing endlessly, I can just point to this article. Much obliged.

  • I just got around to reading all this, and I appreciate your perspective. This is all being talked about at the same time that the Supreme Court decided that DNA collection is allowed when someone is arrested for a serious crime, similar to finger-printing. That, combined with hearing that the NSA’s Utah facility will be able to hold five zettabytes, made me step back and think a similar thought to one you expressed in your original post:

    “The question is not should the resulting data exist. It does. And it forever will, to a greater and greater extent.”

    I work with a very modest database for a very modest do-gooder organization. And even my thoughts turn totalitarian when I have to de-duplicate, data-mine, and do all sorts of routine maintenance. It would be nice to know exactly who everyone is, past and current sur-names, phone numbers, emails, and addresses. Not for anything nefarious; just for the opportunity to ask them to donate and get involved with saving a small corner of our world. Businesses and corporations want the same data to effectively sell their goods and services, and government wants it for everything from the census to taxes to fighting terrorism. The government is smart, and uses Social Security Numbers (or ITINs) to track everyone. It was such a good idea that you have to regularly give your SSN to several private companies to use their services, usually banks and utilities. Most companies and non-profits wouldn’t think of asking for an SSN, but they would certainly be useful to them. At this point though, maybe I’ll just wait until 2028 to purchase Facebook user’s (voluntarily given) DNA sequences compiled from their Genealogy App.

    The implications of what’s possible with infinitely scalable data collection and data storage is certainly beyond cell phone meta-data. And programmable data analysis will also grow exponentially even if it lags the data collection itself. The number of FBI, police, or law enforcement individuals will matter less and less for monitoring and analysis, only priority and decision making (and some of that can be automated as well). The most important thing is certainly ownership, transparency, and oversight. Similar to our military, too much of this stuff is conducted by private companies with no path of accountability to citizens. Similar to new technology issues surrounding intellectual property rights, our judges, courts, and laws are completely outdated, clueless and directly pressured by industry. It’s only going to get more vast and complicated, and we need to seriously think about who owns, controls, and accesses both the data and the infrastructure.

    And yet, phone call meta-data is exactly what was pulled and analyzed (with a subpoena by the DOJ, not under the auspices of the NSA) in the AP scandal to hunt down sources and leaks. I think that powerful example of abuse coming days before this scandal made it clear to everyone exactly how the NSA database can be easily corrupted. People are upset with you because you’re saying the scale of the operation doesn’t matter AND because you’re correct in saying that. But if the scale doesn’t matter, and the scale is approaching infinity, we’re left with institutional competence, institutional morality, and institutional reform as the only checks on this operation. And we all know what you have to say on those subjects. The audacity of despair indeed.

    • Yes, every day we will have to kill a few more snakes. We have no choice.

      There is no panacea. And freedom can never be fully won, but it can be lost.

      Every day, building a society upon the natural tension between liberty and responsibility is work. What a hassle. But the alternative of
      trying to build anything that matters on one or the other? Time to punch the clock….

    • With regard to the AP metadata, your cite of this — which I agree is appalling overreach by the DOJ and ought to be enough on its own to end Mr. Holder’s tenure — as chilling as it is to a free press — is telling.

      In that investigation the DOJ doesn’t need anything like this NSA data base to obtain those records. The specific records of the AP phones are available under a specific court order for those phones, easily obtainable through any sitting federal judge. The notion that for such overreach, the government would go to the FISA court to obtain routine phone data, and then would risk exposure of the NSA program in open court, should a prosecution of the leaker go forward, is silly.

      When they want that data in an ordinary retroactive domestic investigation, they can get it, no problem.
      The NSA program is indeed designed — at least thus far — for what the intelligence community is claiming. It’s to build the haystack from whence they hope to pluck a needle.

      You’re working backwards when you cite the AP phone controversy. Unless, you’re merely trying to say our government is capable of authoritarian overreach, which, hey, no one is arguing with you. But that has zero to do, thus far, with the use or misuse of the NSA program.

  • I really do appreciate the debate and conversation here. I go back and forth on how I feel – wondering if it is naive to expect that the freedoms and rights created by the constitution at a time before the variables of technology and terrorism came to play, can continue to stand in a post 9/11 age where, as you point out, reactivity after the fact creates huge risks to our civil rights.

    I also worry about what happens if we accept these efforts to fight terrorism as part of the natural progression – what needs to happen. In Israel, where they regularly deal with these challenges on a much smaller and more immediate scale, the Ministerial Committee for Legislation approved the Fight Against Terrorism bill on Sunday and it will go before the Knesset plenum for a vote. There are aspects of this bill that are far more concerning than collection of metadata: house arrests and other restrictions on movement without a trial, use of classified, undiscolosed information as evidence against defendants and general broadening of the definition of terrorist organization and the rights of the executive branch to pursue “terrorists” without a trial. I love spending time there, but found myself exhausted by the constant state of alert everyone is in – the presence of military with machine guns and metal detectors is a necessity I hope we never see here, but when we have another terrorist event like 9/11, Disneyland may arm Mickey and Minnie. I will be interested to see if this bill passes and what happens if it does – it’s just as scary as terrorism.

    So my concern is are we diluting civil rights in order to protect them? And with the chilling effect from the DOJ on the free press that you mentioned how good is the quality of information that the public receives? Can we have a reasoned debate and examination of facts? Do we even know all the facts?

    Those planes did fly into those buildings and our lives, whether we like it or not, have been split into pre and post 9/11. Terror impacts our ability to reason and we need to be having these conversations now with an eye toward protecting not only our democracy, but the our safety as a nation.

    I really appreciate you for taking the time and sparking the debate.

  • Reading your arguments in support of the NSA is almost painful. The War on Terror is being used to move money from the public sphere to the private one….SAIC, Grumman, Booz Allen, etc., are siphoning millions from the public coffer.

    Have you read The Shadow Factory by James Bamford? NSA simply ignores FISA when it wants to. There is a clear pattern of this and they’ve been caught over and over for it and “reforms” only slow them down.

    Not to mention how the War on Terror is being used to stifle dissent. Have you read Green is the New Red by Will Potter? This is real.

    I know you’re going to shoot me down, because I don’t know how to argue like you do, but there is something so awful about you, of all people, defending this stuff. If you can see through the War on Drugs, how can you not see through the War on Terror? Yes, those buildings really did come down, yes people really died. There are people really addicted and doing crimes, too, but that is not the fucking point here, is it?

    • How many times can I say this?

      There is a gulag of millions in American prisons because of the drug war. I am waiting for this data base to be used to violate the civil rights or abuse the privacy of the first American citizen.

      Enough hyperbole about Orwell and surveillance states and the quashing of political dissent.

      Facts, specifics, actual cost versus actual risk. Not theory. Actual.

      When this data is misused — that is the moment to seek real reform. We already need a new Church Commission, but for actual affronts to our democracy, such as Guantanamo or the excesses of our drone policy. But when you take aim at technology merely because of its potential to be misused, you overreach, practically and politically. Technology is here, it exists. It will be used, it can be misused. But technology is neutral. I’m sorry. I think as I do here.

      • There are no proven examples because it has been entirely secret.

        I wonder how the amorous emails of General Patreus and his beeyatches found their way into the hands of nefarious folks able to force his resignation.

        We know Jill Kelley got her friend at the FBI to trace anonymous emails….what odds they used PRISM to afford this friend a personal favour?

        • Is this how we do on the internet? We just connect things randomly and speculate?

          But beyond that, you are aware, are you not that Mr. Petraeus was the Director of the Central Intelligence Agency. Now, I hold that whole FBI investigation into that matter in extremely low regard. But indeed, if you have, by any chance guessed correctly, what part of national security would not be involved into a probe about whether the CIA director’s personal affairs had compromised classified information?

          Reach further, deeper when you are making shit up off the cuff. Try to cite the call data or PRISM data being used in domestic law enforcement or political suppression. You know, an example of what you say you actually fear. This is just embarrassing.

          • I am not making stuff up. It is on the record that Kelley (private citizen and funnily enough privacy advocate) asked a friend at the FBI to follow up on an anonymous email she had received. Is that not an example of abuse from the get go, before anyone in the CIA or any other organisation gets involved?

            Nothing whatsoever to do with fighting terrorism, as we are told is the entire justification for the system.

            • Yes, she initiated a contact at the FBI and that contact initiated an investigation. What you are speculating on is whether the call data from this NSA program was utilized in any way in the Petraeus investigation, or whether, more likely, the FBI agent simply got a separate court order for the specific call data involving Kelly, et al. After all, if there’s a possibility of there being criminal wrongdoing here, the NSA and FBI and FISA process wouldn’t want to risk revealing the totality of the program in open court. Instead, given the low threshold for a court order and the modest Constitutional protections for phone data, why not just do regular police work and have a federal judge issue a court order for someone’s phone data or a DNR?

              That all happens whether this NSA counter-terror effort exists or not.

              But even if the Petraeus mess was routed through this program — which you don’t know and I genuinely doubt — I would repeat that this involves the director of the CIA. On some level, this very much is in the category of a national security investigation, albeit one that is not distinctly counter-terror. It nonetheless included concerns — however overblown they seem in retrospect — of classified material being compromised, which speaks to the FBI’s counterintelligence role.

              C’mon, fella. Go back out there and find a case of this data being misused domestically, against Americans who aren’t at the helm of our national security apparatus. Find the examples in which citizens have had their privacy violated and their civil rights impaired, not merely through government overreach, but through the use of this data in contradiction of the prescribed use of the FISA court. Those things matter to your argument. If they are happening, we need to know about it. We want to know about it. But the Petraeus thing?

              • I think we’re way off track here, I possibly led us here. You said there were no examples of privacy infringement. But c’mon. The fact is it’s been shrouded in secrecy all these years and we’ve only known of it’s existence for a week, I’m sure such examples will follow. My point in raising Patreus was as a high profile example of abuse (as I see it). It was nothing to do with him when Kelly reported harassing emails to her friend. It was an abuse of power for that friend to pursue the trail of communications that led to Patreus.

                Moving on…

                “The problems — that that we know about from the unclassified report (there are secret and TS/SCI versions which probably have bigger horrors) — include:

                -FBI General Counsel had no apparent knowledge of 17% of the searches
                -Thousands of searches never got recorded
                -FBI lied to the telecoms about how urgent the information was to get the information
                -FBI did an unknown number of sneak peeks into the data to see if there was something worth getting formally


                • We are way off track.

                  Citing other authoritarian overreaches by the U.S. government is easily done, particularly in the context of the drug war and the war on terror. Address those when they occur. Respond to the actual misuse of a law enforcement tool, by all means. Try to gain some measure of oversight on the secret FISA-process, even if that oversight must remain shrouded in a certain degree of national-security secrecy. No one here is suggesting otherwise.

                  But this phone data is a neutral asset. And it has existed within a law enforcement framework for decades, and there is ample caselaw about how it relates to the Fourth Amendment, or not. What has changed is only what can now be done with the data. A societal good can come from the proper use of the data. And bad results can be achieved by the misuse of the data.

                  Address the actual uses of this data base. The FISA court approved it, repeatedly, on the NSA’s assurance that it would only be used for counter-terror purposes. And there is zero reason to break the terms of that court order for Petraeus. The FBI, in its regular counterintelligence role, gets those phone records with a simple court order. That happens whether this data base exists or not.

                  Again, can I see the first example of an American whose privacy and civil rights have been violated and has suffered any harm as a result of this data base/ At the moment I meet that fellow, then we have an argument worth standing on, and a political opportunity to press for some safeguards. Everything in your post falls short of that moment.

      • From The Shadow Factory, page 131……

        But Kinne said that even though the intercept operators knew they were eavesdropping on American journalists communicating with other journalists and their families in the U.S., the decision was made to continue listening to, recording, and storing the communications. “Basically all rules were thrown out the window and they would use any excuse to justify a waiver to spy on Americans”, said Kinne. “Because you could program the system to pick up specific phone numbers, you could also program the system to block phone numbers. And so we could have blocked the humanitarian aid organization and all those other ones, but they said we had to monitor them just in case they ever talked about – because they were eyes on the ground – just in case they ever talked about seeing weapons of mass destruction anywhere and gave a location. Or in case they ever lost their phone and some random terrorist picked it up and started using it….and for those two reasons, we could listen to all the NGOs, humanitarian aid organizations, and frigging journalists in the area – continue to even after they were identified and we knew who they were and that they weren’t terrorists or terrorist-affiliated….So that was the excuse they gave.”

        Called Operation Highlander. After Shamrock and before Prism.

        Just sayin’.

        • Overseas.

          No one is doubting that the NSA is and has long been free to eavesdrop on the world overseas. That’s a whole ‘nother kettle of fish that has zero to do with this data base and this issue.

          If your more general point is that the mindset of these organizations tends to authoritarian overreach, I certainly agree. There will be misuse. It is how we respond to that misuse that can change the terrain in terms of policy and the law. Pretending that technological capabilities — which are neutral, which can be either used to good societal effect or to destructive effect — don’t exist? That is a non-starter.

          • Only half, though.

            From pg. 132 and 133

            The idea of permanently recording incredibly personal conversations between Americans – husbands, wives, and lovers – greatly bothered Kinne and she went out of her way to erase them. “A lot of times I would just delete them,” she said, “especially the halves that were taking place in America because they were picked up separately and recorded separately. …..A lot of time you could tell they were calling their families, waking them up in the middle of the night because of the time difference. And so they would be talking all quiet and soft, and their family member is like half asleep – incredibly intimate, personal conversations – and I just can’t believe they were frigging recording them, and I don’t know why they would ever have to to begin with.”

            Her own initiative and not according to protocol, btw. That would be Sergeant Adrienne J. Kinne….another person with heart and mind intact.

      • “When this data is misused — that is the moment to seek real reform.”

        But if you’re the one behind bars, as a result of this data being misused, then you won’t be *able* to seek the reform. It’ll be too late.

        I have the utmost respect for you as a writer, Mr. Simon. I even agree with portions of your argument; for example, I believe that the NSA *should* be allowed to use any and all technology at their disposal to prevent another terrorist attack.

        Where I draw the line, however, is providing them with the legal right to: a) deny they’re doing it, and b) to prosecute whistle-blowers in their organization who merely report when they’ve abused their authority.

        I know you’re too smart to make the “if you don’t have anything to hide…” argument, but for readers who might unintentionally conflate what you’re saying with something similar, I’d encourage them to consider the following scenario:

        Imagine a terrorist cell that communicated with one another via email and cellphone. Realizing that their communications are being monitored and recorded, they devise a simple code. In this code the phrase: “Let’s meet for coffee tomorrow at Starbucks,” actually means: “Pick up the explosives in the Wal-Mart parking lot.” And, “I love you, Sally,” means: “Hit the detonator at 5:00 PM.”

        A silly example, perhaps, exaggerated to make the following point:

        What if the NSA cracked this code, and then started to investigate everyone who’d ever used one of these innocuous phrases when writing to a loved one? or while calling a stranger to coordinate the sale of a used laptop? Would you be comfortable being a “person of interest” if you were unlucky enough to have used one of these phrases?

        Are you sure? What if it turned out that, unbeknownst to you, the person who bought your laptop had a cousin with ties to terrorist organizations?

        Even if you’re eventually proven innocent, your life could get pretty bleak while the feds sort things out.

        Again, I’m not saying the NSA shouldn’t have the right to carry out this kind of surveillance, but citizens should know the extent of it upfront, giving our representatives the opportunity to pass legislation to mitigate any unintended consequences.

        • I completely agree with everything you said. There are so many ways this can go wrong and almost no way it would do any good at all.

          The idea that terrorists thought their emails were private and that this is “damaging” to national security is completely dumb. Bin laden didn’t even use mail. He used people, couriers. I’m sure that he and a lot of other terrorists got burned early on when they assumed email was private and quickly found out it wasn’t.

          And, I don’t understand how journalists having their phone records known is “chilling” but a person knowing that every email they send out is stored by the government is not “chilling”.

          Bottom line, on its face, this whole thing is completely screwed up and I’ve seen this same scenario played out over and over again in things like the bailout, all the bush scandals, and everything else. The steps go like this:

          1. Do something so brazen that people can’t believe that you’re doing it.
          2. Ignore the obvious and focus on the details.

          The same 2 steps are going to town here. “Nuance” has its place but so does flat out obvious truth.

      • Many people, even on this board, bestow high praise on the show The Wire, a praise I agree with. For me one of the essential goods of that show was the unflinching look at the nature of power (at all levels from Gov/police to Drug boss) especially as it worked its way thru various relationships/levels/aspects of the drug culture. That and an articulate showing of just who and how certain people, citizens even, in our cities have become expendable.

        This point of D.Simon counterpointing the known breaches of civil liberties with the presumed ones to come via the NSA is compelling.
        I don’t think we can wait until there is known violations before we take up this issue. But I wholeheartedly agree that we cannot be in uproar about this potential violation (or as yet unknown violations) of the NSA system when there is barely a squeak about the very real violations of peoples lives in the present tense.

        There is a certain “class-ness” to this NSA issue, it seems to me. Like how quickly the Congress reversed the one significant impact of the sequester to their “happiness” vis a vis the FAA controllers. If this consequence had been to, say, limit the number of buses on the highway I don’t suppose it would have gotten the action it did.
        So this issue affects, potentially, also the powerful and those with voice in our system. If it were limited to that class of citizens we have written off, the victims of the drug war for example, it seems likely this story would soon be remanded to the back pages. And likely the endeavor would be met with full throated support, because it was affecting “them” and “those criminals”. Like some high tech version of “Cops”. (A show I despise for many reasons).

  • Thanks for these back and forth posts. You just about have me convinced. There’s one thing that hangs me up, and I suspect you’ve covered it and I’m missing it, but, I’m missing it, so…

    The Beloved Spouse and I started our biennial viewing of THE WIRE a couple of weeks ago. What strikes me as different is the detectives had specific pay phones they wanted the call numbers for, and photographic evidence that these phones were being used for illegal activities, BEFORE they could get the data. That’s probably cause. What the government is doing now falls under the category of “fishing,” which, I believe, has never met the standard.

    What am I missing?

    • Ah, the perils of conflating a fictional story with the complete reality.

      In the television show, as I remember, you were shown the second stage of the process. We skipped the first stage of the process, which was the attachment of dialed-number recorders to those payphones. That could be done on far less probable cause because, again, capturing call data — rather than wiretapping — is the acquisition of information that the Supreme Court has long determined to be outside the protections of the Fourth Amendment.

      You were watching a scene of detectives preparing not to put DNRs on those phones, but to wiretap those phones. And yes, to listen to the calls — which in this instance the Verizon court order does not allow the NSA or FBI to do — you need to establish clear probable cause and get a warrant.

      On the other hand — given that we wrote those episodes more than a decade ago and I haven’t seen ’em since — if we did show a scene of them noting which pay phones were used prior to even the DNRs, that wasn’t us showing probable cause for that phone. That was us showing the rag-tag unit that was working out of the basement of the courthouse figuring out which pay phones might best yield secrets. Because the other theme of that first season — and the reality in Baltimore — is that regardless of the legality of casting a wide net of DNRs on various phones, the BPD had the resources to run one or two wiretaps and maybe a couple dozen DNRs simultaneously, at best.

      Please. Don’t make me go back and rewatch old stuff. I only see the mistakes.

      • Fair enough, both in the answer and in the request at the end. I accept your argument, but still wish it wasn’t that way. I’m still appalled the Supreme Court allows for drunken driving checkpoints, as long as everyone is stopped, even if they have no probable cause to stop you. Maybe I’m more a child of the 60s than I thought.

  • You say person-to-person e-communication should be granted the same protection as voice calls (a subset of e-communication, as far as I understand) or physical mail. Do you think metadata about communication should also have that protection? Metadata is often more revealing than the actual content.

    • Save for one aspect of metadata — at least with regard to telephonic communication — I have a hard time with the idea that metadata is more revealing than content. A wiretap beats a DNR any day. What you are caught saying to someone will put your ass in jail. The metadata-capture on telephonic communication is indeed a much less invasive and much less evidentiary than the content.

      There is a notable difference nowadays in the mobile phone traffic metadata in that the location of real-time calls can be determined from GPS from the metadata. This is a new development from that historical moment when phones were fixed and their location did not reveal human movement, I agree. In fact, just guessing now, but the only split decision on the ACLU suit that I can imagine is that the Supreme Court decides the government can continue to compile by court order all call data, save for the location of the call, for which the higher standards of a wiretap.

      With regard to e-communication, I am unclear how viewing the metadata is, again, more revealing than viewing the content. Determining where one travels on the web is invasive and who you communicate with is invasive as well. But what you do and say is certainly more invasive, and evidentiary to boot. My concern with the current state of the law on e-communications is that when you get the metadata, you pretty much get the content itelf. There is no graduated affront to privacy under the law, as there is with telephonic communications. I think we should grant e-communication the same right to privacy as telephonic communication.

      Perhaps I am missing something more.

      • The most immediate example of how metadata can be just as damaging as “real” data is the Petraeus affair (pun solidly intended). His relationship with Broadwell was discovered exclusively through metadata, indeed they couldn’t actually have been discovered through the content of their emails because they never sent any emails. They created drafts and discarded them in the same gmail account and no actual emails were ever “sent” over the wire. However, data about the drafts (the login location, the prospective content of the draft) was sent and stored at google. The “real” data (which I expect would have been argued as never even having existed on the basis of drafts not being actual emails) was inconsequential in how Petraeus was brought down.

        An amusing take on the metadata issue is at the following link where the merest sliver of metadata about the Founding Fathers is used to construct an entire social network for them.

        Companies like Google which both compile massive amounts of metadata (we should really just start calling all of it simply data) and deal with external entities like advertisers who would desperately want to know more information about how their advertising is working take extreme pain to anonymize the data they give to those advertising clients. At least, the ones that take privacy somewhat seriously do. Badly anonymized aggregate data can be easily unfolded by a clever mathematician.[1][2] PhDs in cryptology are who the good companies hire to make sure that can’t happen to provide basic, adequate privacy to their users. These NSA programs provide a completely unrestricted firehose with all kinds of data like that, allowing them to draw a near-infinite amount of conclusions with very great certainty about anyone.


        A few more links of interest:

        • And yet the Petraeus mess also makes clear the disconnect between the specifics of this NSA program and the use of metadata in other frameworks.

          Simply put, this data base was approved by a FISA judge on a court order that requires the NSA to only use the data base for counter-terrorism, and to not access the metadata for other purposes. When the FBI was engaged with the original complaint regarding Petraeus, they were able to achieve the metadata as law enforcement is routinely able to achieve the metadata.

          The suggestion that allowing this data base will somehow enhance the government’s ability to hunt down, investigate or blackmail people specifically is not the logic. Indeed, any federal agent working on domestic investigation is going to go to an ordinary federal judge to get an ordinary court order. They’re not going to go to FISA; what if their probe goes to wiretap and/or to court. At some point they’d have to reveal the FISA involvement in discovery, at which point they’ve thrown a intelligence program into the sunlight to no purpose.

          My point is, if they wanted the metadata for Petraeus or any other American citizen for any domestic investigation, they’ve got it the usual way. As they’ve always had it, whether this program — which is FISA approved with a specific counter-terror mission — exists or not.

          • I think they would then easily define whatever they want to use it for on a given day as “counter-terrorism”. The recent investigations of news agencies are examples of that kind of overreach, defining things as terrorism that are very, very clearly not terrorism.

  • Dear David,

    You are not just an argumentative prick, you are a damn smart one, and a damn good writer to boot. It is a pleasure to read your thoughts even on this extraordinary (and, as far as I can recall, unique) occasion in which I disagree with you.

    One aspect of this controversy that I feel you have not addressed is the concept of trade-offs. You went to great lengths to explain how collecting all this phone call data could benefit anti-terrorism efforts; why it would be useful to have data about past calls once a target is identified, etc. Sure, your point is clear, but there is a COST, and I feel you are dismissive of the concerns people have about that cost, and about the possibility that someone might agree with your basic point but still feel that a better balance needs to found between the need to fight Terrorism* and the need for all of us to be able to live our normal, law-abiding lives that are full of mundane secrets, love affairs, Internet lolcat habits and whatnot. So the law does not accord call metadata the same status as the content? Fine, I’ll take your word for it, but that does not mean that that is as it should be (indeed, you yourself acknowledge that in the case of the legal status of Internet communications the legal state of affairs is NOT as it should be — perhaps that should cause you to contemplate that maybe the people who get all upset about call metadata may have a point after all?).

    Furthermore, one can be of the opinion that it is okay to allow a budget-stretched municipal law enforcement agency to temporarily record call metadata on a limited number of public pay phones, but that it is also NOT okay for the world’s most powerful and technologically advanced intelligence agencies to indefinitely and permanently be recording metadata of a substantial fraction of American citizens. Contrary to what you appear to be arguing, it seems to me that holding both of those opinions does not cause the fabric of space-time to explode due to a logical inconsistency or something. (Incidentally, I am a mathematics professor and I am quite passionate about logical consistency.) Running a country the size of the U.S. involves trade-offs of a different kind and scale than running a municipal court in 1980’s Baltimore. What I would like is for you to simply acknowledge that in this debate there are no rights or wrong, no blacks or whites, only shades of gray; that we are simply balancing between two evils (terrorism v. violation of privacy), and that reasonable people can disagree on where to draw the line that finds the right balance between these evils. Saying that the whole thing is bullshit is disrespectful to those reasonable people who happen to have a different view than yours.

    * About “Terrorism” with a capital T: I am surprised that you of all people think terrorism is such a big deal and deserves such special status relative to all the many ills that afflict the country and the world. You may be right that terrorism has an influence beyond the body count, but in The Wire the war on terror was presented in a rather ironic way that I appreciated very much and which I thought said the opposite of what you are saying now. For example, there was the scene where McNulty suggests to the FBI agents that Barksdale and company were essentially domestic terrorists, to get them to agree to help out. The Feds treat him with contempt and walk out of the room, but the point that was put across (or at least so I thought) was that McNulty is right, and our society allocates law-enforcement resources in a ridiculously inefficient and unjust way. I would be disappointed to learn that that was not what you meant.

    Regards from California,

    • Since The Wire was written by a team of writers, I don’t think we can assume that every opinion put forth by the show is also the opinion of David Simon.

      I agree, though. I’m not convinced that the average person’s reaction to terrorism – that is, to allow it to be terrorism – is any good. The reason Al Qaeda was so successful is entirely on us. What if, somehow, we had reacted to the three thousand deaths in the same disinterested way we react to most deaths? Most of us pay little to no attention when someone we don’t know dies from cancer or gun violence or a car accident. If those deaths were the same to us, Osama bin Laden would have failed. To truly defeat the terrorists, all we have to do is deny their terror.

      Treme is a constant reminder of how ridiculous it is that the whole country shut down after two buildings were destroyed, and yet after an entire city was submerged most of us stopped caring very quickly. I wonder how New Orleans would have done if we were focused on important things instead of pissing away our resources on a pointless “war” on terror. If 30,000 Americans are killed in a terror attack tomorrow, I’ll still think we should spend more money on defeating cancer than terrorism.

      The US isn’t Israel or Northern Ireland of a few decades ago. I can ignore terrorism without being a “Luftmensch” (hooray for learning new words). I think the reason we allow terrorism to control us is because those in power fan the flames of fear, knowing that we’ll bow to the nearest authority if we’re properly frightened, and they can’t get a good amount of us to fear non-Muslim minorities anymore.

  • I would really prefer that you debated, say, Bruce Schneier rather than yourself.

    I agree that wars of aggression, the drug war etc are very bad, maybe worse than these revelations (which don’t mean much to me as a non-US citizen). But i think you are missing the very thing that made The Wire such a great, great series here: there’s no separating these things out.

    This is _intimately_ connected with the war on drugs, the corporatisation of your country, the prison industry, the arms industry. It’s connected with the suppression of dissent, with the replacement of news with entertainment and fear-mongering, with the circus sideshow of the political parties.

    I think you are not seeing the big picture here, and yes, i think you do have a slight authoritarian streak surfacing – is that transference of your understandable affection for regular police onto secret police?

    [okay there were a lot of things that made The Wire great]

    • All of those bad things are at play in America. But those planes really did hit the buildings.

      If I am so aggressive in attacking other authoritarian overreach, and yet here I find this data base acceptable, perhaps it because at its core — in terms of the basic effort to prevent another mass killing– the counter-terror apparatus might have a different fundamental purpose than the war on drugs. Preventing a mass killing is a societal goal to which I remain, strangely, supportive, while still giving thought to the legal implications for civil rights, human rights and privacy. The drug war, not so much.

      When you deconstruct everything, you are saying nothing.

  • It seems to me there are 4 ‘situations’ that you are contrasting..

    a – Metadata obtained from PUBLIC payphones, TARGETED based upon their area, intelligence obtained by policework and Judicial oversight.
    b – the tapping of those public phones once a pattern of wrongdoing has emerged.
    c – Metadata obtained from PRIVATE cell phones, indiscriminately applied to all citizens in the hope it provides some intelligence, without judicial oversight.
    d – the tapping of specific individuals phones when a pattern of wrongdoing is identifred.

    You argue that a leads to b, and in fact b is a bigger breach of liberty than c, therefore c is acceptable. However these are distinct. b requires the burden of evidence, and c does not. So b is not in fact a bigger breach of liberty.

    The honest comparison is only between a and c….or between b and d. Not between b and c. Those are apples and oranges.

    The most generous you can be on the difference between a and c is that it’s only a question of scale (if you ignore completely the intelligence that led to the request in the first place). Scale is a huge question in most infringements on freedom. To make another analogy, I would compare it with the right to bear arms in the US. There is obviously a very public debate ongoing. Does it allow a citizens to own a musket? a revolver? a semi-automatic? fully automatic? a rocket launcher? a cluster bomb? A nuke?

    To me, it is as if you would argue that nukes are ok for citizens..because it’s just a question of scale. Monitoring every call made by every American is the nuclear option. It has been mandated in secret with no discussion whatsoever. Mr Clapper committed the crime of lying to your congress in order to keep it secret from you. If you are not shocked you are not paying enough attention.

    • That last line suggests people paying attention will be shocked. I take that back. People paying attention obviously knew this was going on and were outraged before the leak. The proof released this week only confirms they were right to be unhappy. People who weren’t paying attention should be shocked.

  • Detectives Fraemon and Pryzbylewski were meticulous in their work. They were police — openly accountable to DA’s, judges, and, ultimately the citizens of Baltimore. I wonder if the same thing can be said for the hundreds of thousands of private contractor employees that have security clearance and access to data.

  • Hey, good job. You really showed that punk. The folks who disagree with you sure are pushovers!

    I know that’s a cheap response, but I’m just too thoroughly bummed by how motivated you are on this issue.

    • Yes, it’s pretty cheap. I’m sorry that you are bummed; it’s just one person making an argument. As to motivation, I think it’s more honest to say I’m interested. As I said, I spent a lot of time at the federal court house, reading a lot of affidavits. Call it nostalgia.

  • David, I’ve very much enjoyed reading your commentary and thoughts on these issues. Thank you for bringing some intelligent discussion to the least likely place of all – an internet comment section.

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