To and Fro. And Real Respect To Mr. Shirky For Checking In, Regardless.

In response to yesterday’s expressed disappointment with a Guardian column that challenged the original post on the NSA controversy here, Clay Shirky, who authored that essay, showed up in the comments section this morning.  That’s a mensch.  All credit there.  I’m going to highlight his comments and my answer to continue to focus my argument here.  And perhaps maybe move the argument off of who is Simon, or Greenwald, or Andrew Sullivan, or Thomas Friedman, or Janet Mayer, or Michael Moore, or Glenn Beck, or certainly, Mr. Shirky himself,  where they come from or what they might or might not know given what we think we understand of their background.  That stuff does not improve argument; it weakens argument.  Content matters.  The arguments themselves matter, not who we think made them or why.  Come to think of it, everyone just now arguing about who Edward Snowden is  might similarly inoculate themselves against the great viral scourge of  argumentum ad hominem, and focus, instead, on what Mr. Snowden has actually revealed — both good and bad for the republic.

Anyway, from Mr. Shirky:

I’m sorry I’m just getting to this now.

Let me apologize for over-reading “Allow for a comparable example…” from your earlier piece, which I presumed to be a more general comparison between the Baltimore cops and the NSA than you obviously meant it to be. Duly noted, and I won’t refer to that comparison in the future.

Let me also agree with you that I remain “…mute to the great questions here, which is how do we reconcile privacy with security, personal liberty with collective responsibility.” That is true; those were not the questions I meant to address.

I also understand that your belief that if what the NSA is doing is legal, it should also be acceptable to the American people, is a political assertion, and thus not one that can be right or wrong. Though it is one I disagree with, I know your views are likelier to carry the day than mine. (Indeed, my preferences on civil liberties have not been terribly well represented in the national debate any time in these last dozen years.) Such is life in a democracy.

And I wholly concur with your recent statement in this thread:

“The computers are big and powerful and capable of doing things — good and bad — that we once couldn’t do. No shit.”

This is of course true. However, I can’t find any version of this sentiment in “We are shocked, shocked…”.

I also can’t imagine any plain English reading of…

“Because that is tens of billions of phone calls and for the love of god, how many agents do you think the FBI has? How many computer-runs do you think the NSA can do — and then specifically analyze and assess each result?”

…that suggests anything other than a belief that the NSA’s surveillance capabilities can be usefully likened to those of the FBI, and that those capabilities are constrained by technological capacity or manpower in a way that should make us worry less about the potential for uses of which the American people would not approve.

Even to speak of “computer-runs”, with its sense of batch processing and mainframes is off the mark, and the FBI is famously a technological laggard (google ‘virtual case file’), not a problem the NSA has. Neither the tools the FBI has access to, nor the constraints they operate under, make for good comparisons. (The NSA is only directly comparable, in my view, to the NRO, Air Force Cyber-command, Secret Service, and CIA in terms of tools and techniques, and the scale of NSA resources is larger than those organizations.)

Similarly, the change in what constitutes meta-data, not just for Prism but for phone calls, means that the upper limits on human attention are quite different between law enforcement and the intelligence community. If you say “Here are 100 hours of David Simon’s phone calls. How long do you think it will take to find out if he said “Brooklyn Bridge” in them?”, the answer from traditional law enforcement will be “50 hours, on average.”

Once you have a machine that can search human speech, however, the same question question can be answered in seconds. The model you seem to hold out — first the computer works, then the human — doesn’t describe the way the tools can be used today. Computing power serves as a partial substitue for human attention, so that the amount of material a human agent can cover is far larger, in a place like the NSA, than it is in a place like the FBI.

The great questions are elsewhere, as you note, but this narrow point intersects with those questions in one critical way: the balance between power and oversight is affected by how significant the powers are. The executive branch of the US government has a poor record of using its powers against political dissent, from union busting, through the civil rights movement, to COINTELPRO, to surveillance of political movements like #Occupy today.

In “We are shocked, shocked…”, I think you under-represented those powers, in a way that would make it harder to understand what sorts of checks and balances the NSA should be subjected to.

In reply:

Dear Mr. Shirky,

Pleased to make your acquaintance. Thank you for venturing here for a direct discussion as to my disappointment with your essay.

Thank you, too, for acknowledging that that the Baltimore example in my original post actually had a different substantive purpose than the one you claimed for it in your essay. Certainly, no sentient being would think that what police anywhere did with a Title III wiretap in the 1980s could be used to speak to the computing capabilities of American counterintelligence thirty years later. That would have been just silly. And of course, I was distressed to be considered so marginally on such little cause. Your application of the example to your own purposes in your essay — that of chronicling the power of the NSA computing capability — is at least suggestive of a certain propensity on the part of all of us to misshape the argument of others into a different one, an argument that we very much wish to make.

When confronted with such a dynamic, my uncle, the esteemed and learned Irving Ligeti, used to remark that he knew for sure who shot President McKinley and who shot President Garfield. And goddamit, he was going to work it into the conversation come hell or high water.

My comment as to what you remain mute to was, of course, meant in corroboration of the aforementioned dynamic. Meaning, my original post was addressing other things that, in changing the subject, you did not address or wish to address. It is certainly your perogative to write about what interests you, but given the fundamental ethical and political conflict between privacy and security that is at the heart of this controversy, it is at least fair to note what matters of interest went unaddressed in your own effort.

With regard to your next point, you cannot find a sentence as such as “the computers are big and powerful and capable of doing things — good and bad — that we once couldn’t do” in my original essay because such a sentence would be, at this late date in the history of the computing revolution through which we have all lived and experienced, worthy of Candide’s first trip to Paris. What you would have found, in my original post, is this simple premise, acknowledged:

“Privacy is in decline around the world, largely because technology and big data have matured to the point where it is easy to create a net that monitors many daily interactions.

That’s there in black and white, italics now mine because you’ve ignored it twice now. It is not a paragraphs-long aside on just how wicked powerful the NSA computers are, but I certainly deem it sufficient to invoke a rhetorical legalism that all of us recognize:  Stipulated.

In my original essay and elsewhere, it is stipulated as to what the NSA’s computers can do. It is one of the givens in this ethical, legal and policy problem, and yes, a notable one. But with so much on our collective plate to discuss in terms of what the NSA program might or might not mean to privacy or civil rights, with its potentialities for counter-terrorism, a long-winded dissertation along the lines of no-I-mean-really-really-powerful, such as you offered in non-rebuttal rebuttal of my essay seems, well, absurd.

Which brings us to your next disembodied shard that to you suggests my Luddite ignorance — the fact that I asked how many computer runs the NSA can do? There is an ambiguity in that sentence taken alone, I do agree. But backed hard against the paired question of how many FBI agents do you think we have, I feel that the crux of my argument is clear. If you understand  law enforcement — whether it’s legitimate law enforcement or an effort by agencies to unfairly target and violate the civil rights of citizens — you know that the computer run is not the resource issue. The time and manpower are. And with every computer result, if Americans are going to be targeted off the basis of billions and billions and billions of calls — there will have to be a corresponding allocation of finite investigative resources. Taken as a whole — what a concept, I know — my argument is more than an opening for more  dissertation on computing capability. My argument is this: Why would the government use this huge metadata pile for that?

Go back to the real point, again, of my Baltimore example and that question is already answered for us: It is legal already for this data to be obtained, without warrants, without standards of probable cause required for warrants. Metadata has been ruled legal for ordinary law enforcement purposes from the administration of Jimmy Carter forward. The point here is obvious and from your subsequent reflections on my cite of the legal standard, it’s clear that it has either eluded you or you have ignored it: If they want you, in the manner that you want Americans to worry about,<em> they’ve already got you.</em>  There is no blessed reason for an investigator to use this particular datapile at this particular facility in Utah to target individual Americans — let’s say, the phones of news reporters, for example.  They already have ready capability to grab such records whether this data pile exists or not.  And in fact, given the project’s counter-terror value and the level of national security secrecy, there is actually a practical disincentive to expose this program by using its data to undertake casework in which the chain of evidence could, ultimately, lead any future controversy back to this top-secret project. No, if the government wants to use your phone metadata to mess with you, then a run-of-the-mill FBI agent walks his request over to any run-of-the-mill U.S. District Judge and gets a court order for material that, again, has never had constitutional protection. I understand that  the FBI doesn’t have the computer capacity to navigate a mass of megadata as the NSA can, but such capability isn’t required to purposefully target large numbers of Americans using phone metadata. That stuff is obtainable from Verizon in minutes once you walk into their security office with a subpeona or court order. And if you think the data pile opens us up to fishing in metadata on a scale of 300 millions of citizen-targets, well then, you’re back to the questions of priority and manpower, which are the ones I raised in my essay. For every computer outcome, regardless of how easily arrived, a human being has to take the time to do the work to mess with someone.

I understand sufficiently well the linguistics science that has gone into NSA computer capture technology.  The NSA language capture capability has been well reported by my old newspaper — Ft. Meade lies just below Baltimore — and in numerous publications for decades now. We’ve all read “The Puzzle Palace” and we all know who Mr. Binney is. Please, Mr. Shirky, no more stooping to lecture on the givens. But your “Brooklyn Bridge” example begs two questions: Is the NSA computer-searching recorded content, because that is not what the FISA-signed court order suggests. Recorded content on phone does have Fourth Amendment guarantees of privacy, and if that judge was signing off on content, I would think he is not signing a court order for metadata, he’s signing a wiretap warrant. Moreover, you are the first person I have heard suggest that the NSA data pile contains recorded conversations. Please resolve that. I do not believe that Verizon actually has the capability to even record all of our conversations, much less turn over recorded content of all its phone calls, even if the government asks. I believe the government needs to achieve its own telephonic intercept through wiretap for such, which is again a higher standard of probable cause.  And to further point out where your “Brooklyn Bridge” example leads:  Yes, the NSA can singularly and quickly determine who is talking about the bridge more than ordinary. But then, still, a human being has to go out on the street and research the why. The why is where the resources become more finite. How long for human resources to assess the data, confirm its connection to a human target, assess that target, determine its interest in the Brooklyn Bridge and move on to the next computer outcome? It’s Orwellian, sure. Scary, even. But while that imaginary scenario is going on, there’s also an awful lot of actual phone traffic between the United States and overseas areas of concern to which the system must attend.

But of course when you cite my computer-run language in isolation, carefully eschewing the manpower question that precedes it — this allows for a return to your one-trick pony. Simon knows nothing of the brave new digital world. Ergo, why would he opine as he does? And how easy it is for us to disregard the rest of what this abacus-toting ass actually argues. It’s worse than a red herring. Call it red flounder.

As to the remainder of your post here, I am in agreement that legality is not morality. My point in raising legality is not to equate it with what is necessarily just or moral. You are mistaken if you think so. Again, I am sentient. Segregation was once legal. So is drug war, of which you may be aware, I am a rather implacable opponent who urges jury nullification in non-violent offenses every chance he gets. My point in citing the legality is to say, in the wake of the Guardian’s headless-chicken act, that Americans have in fact been tolerant of court-interpretations on the use of phone metadata going back through three decades of law enforcement use. And to point out that this stuff has never required a warrant from law-enforcement. Again, that is me stating a given, not using the legality for some sort of circular argument.

In truth the two unique aspects of this data haystack that the NSA constructed are these:

1) It is vast and includes, I am going to assume from the Verizon court order alone, all American phone traffic, and…
2) It pre-exists the discovery of specific, suspected phone numbers that are to be run through the haystack in search of a needle.

Elsewhere on this site (this is long enough already) there are detailed arguments — arguments that couldn’t actually be made by someone living in ignorance of NSA capabilities or methodology — as to why these unique aspects are present and, perhaps (we will soon see), legally justifiable. Briefly, by creating the biggest haystack possible, by NOT excluding anyone from the data base, this program is actually, in practice and with regard to individual Americans, one of the least invasive and most discriminate acquisitions and uses of metadata I have ever encountered in all my years of considering, observing and writing about law enforcement. If used as the counter-intelligence community has asserted in seeking the FISA approval, and in briefing all branches of government as to that purpose, then the fact that all Americans — grandma, the fourteen year old, the Republican god-fearing farmers of Nebraska — are included in the data pile and that no human knows the identity behind any single call, or looks into any shard of data, or segregates the data by ethnicity, by politics, by religion or whatever, it is, in practice, much less invasive of individual privacy.  Only when the wrong number in Chechnya calls someone is the identity of a citizen suddenly germaine; the identities of all others remain unknown, unlike the reality of every other numbers dump or DNR that law enforcement has ever done.

As to the pre-existing nature of the data pile: I am guessing that if we ever see the material in support of the request for a court order, the government will have offered the following: The average shelf-life of a cellphone in the echelons of a competent terror organization is, at best, days. And the time and bandwidth required for us to have Verizon access this much data, ship it over to us in Utah, and for us to get up and running is, well, a bit longer. By then the cell phone is dumped and the opportunity for pro-active, real-time intelligence disappears.  Legally, it’s called an exigent circumstance and it is an effective and germaine legal point.

To your simple statement that while legal, Americans must agree with it, I say precisely so. Would that the Guardian’s initial reporting, rather than editorializing on the “indiscriminate and sweeping” nature of the NSA program had contained even as much context as the above two paragraphs, I’m actually pretty damn sanguine as to the result. We’re a generally sensible people once all the facts and context are laid out, and full-blooded arguments and counter-arguments have their day.  Most of us are, anyway.

As to your final point about the government’s history for abuse of such data, I again stipulate readily.  In fact, I concur fully.  And in the original post, I acknowledged the potential for misuse, even noting such misuse at some point, by someone  — as with any law enforcement asset — is likely. In fact, I ventured further in the original post further to express concerns about how the secrecy of the entire FISA-process is problematic in preventing the evidence of such abuse from coming forward for systemic redress. You quoted none of that, regrettably, but mischaracterized my even-handed language as being this:  Simon thinks we  should “trust” the NSA. I said nothing of the sort.

“All governments lie,” said I.F. Stone, and he was dead right, then and for now and for all time.  But Mr. Stone also understood  that governance is nonetheless necessary, and so while trust is perhaps too indulgent for any thinking citizen, a measured and discerned attention to all of the costs and risks of any and all action and policy becomes the real intellectual currency.   That’s what I’m trying to spend here.  Trust was off the table a long time ago.  But again, your simplification of my stance certainly would suit the agenda of someone determined to paint someone as a political and technological naif, while eschewing any interest in his actual arguments.

And therein lies all of my disappointment with your response to my original post in the Guardian.



Let me add, that I can only assume that Mr. Shirky  understood himself to be replying in a comments section and so was more brief than he might have otherwise wished.  Comments are generally more circumscribed than what can be accomplished in a full post, and so, indeed, my reply is longer. To that end, whatever else I receive from Mr. Shirky in further reply will be appended below this, to any length he requires.  And further,  I will accord Mr. Shirky the last word here on this post.  He earns that by engaging openly and directly, and I credit him again.



  • I was hoping that Mr. Shirky would pickup the conversation with another round of reply. No such luck it appears? Or did I miss it in the welter of going over the same ol’ stuff.

    Re the endless attempts to have a real discussion: D.Simon does not strike me as a saint…but he certainly plays one on this blog with his seemingly endless ability to counter the same BS arguments coming from seemingly all sides. Thanks to DS for that, and I hope that the end of this is better and more meaningful conversations in our public square going forward. Here, and if at all possible, in the corridors of power.

    Its been a clinic on clear thinking and how to engage the monolithic issues of the day.

  • And now for some unapologetic ass-kissing:

    Mr. Simon,

    While reading all of your arguments on the NSA, I have found myself applauding your use of old-fashioned, rigorous rhetoric to make your points. Between high-school and college, I spent eight years on debate teams and have since come across few people who know that argumentum ad hominem isn’t about being a dick, but about judging the person rather than the argument.

    So thanks for that.

    • Yeah, it’s been narrowed to name-calling, and that’s sad, given that it’s the fallacy that most pollutes our political conversations.

      I loved logic and rhetoric. Best coursework ever in college.

      • “I loved logic and rhetoric. Best coursework ever in college.”

        For me as well. Downside to that background is the look in my wife’s eyes when I go into “debate mode”, as she calls it. Rhetoric is useless in the face of such a weapon. Silence is the better part of valor.

        • Yeah, you need to save it for the internet or the panel discussion. I learned that, too.

          Ya made me smile. My wife, too.

  • Hi, David…

    Long time reader (not just of your blog, but your books, as well) and big fan of The Wire, but this is my first time offering a comment of any kind…

    Having pored through the last few entries and the seemingly endless parade of comments, let me say your intellectual rigor and attention to detail are enviable and inspiring (to say nothing of sorely missing from so much contemporary journalism).

    I agree that a lot of the shock-and-awe outrage of the type you objected to in the Guardian’s presentation of the story has no place in straight reporting. (Another disheartening sign of the times: the line between reporting and punditry has become distressingly blurred. As a reader, rather than practicioner of journalism, it sometimes seems that facts have become a very hard thing to get one’s hands on. Which is kind of ironic in the information age… I sometimes feel, when I read the news, that if I want to know the whole story, I’m going to have to go get a journalism degree and pursue it, myself! Social commentary aside…) As many news outlets have been quick to point out, this “story” of invasive government monitoring has broken several times in that last twelve to fifteen years (one of the most notable being a 60 Minutes story from 2000… BEFORE 9/11 or the Patriot Act, no less…). So why is everyone pitching a fit now…?

    Well… In defense of the civilian, non-journalist outraged, I think there are a few emotional factors at play here and, while I have little fondness for human interest stories, I feel like they should be on the record.

    To begin with, as you have noted, a lot of us are not fans of the secrecy surrounding FISA and/or any of the Patriot Act to begin with. Some of us voiced strong opposition to the Patriot Act back when it first passed and we have been campaigning for its repeal every year since. Therefore, anything carried out under the Patriot Act, through the closed-door FISA courts, already gets our dander up. Being confronted with the practice of what many of us already disapprove of in theory is always that much more troubling.

    There are those who voted for Barack Obama, taking him at his word, i.e. believing that he would set about trying to repeal (or at least, reduce the scope of) the Patriot Act, increase transparency, rein in Executive power, and in various other ways, pull back on the authoritarian overreach of the previous administration. It would not be too far-fetched to suggest that many of these people feel betrayed in light of recent revelations and that, in a lot of cases, that sense of betrayal has more to do with the dramatic, outraged reactions than the actual facts in the story.

    There are others of us who have paid close attention to Obama’s time in office: the Drone program, his drug policies, etc., and while we’re not at all surprised at any supposed revelations about his intelligence gathering, national security initiatives and so on, we find our frustrations hitting a fever pitch when many of his more left-leaning, progressive supporters still insist on seeing him as a saint of liberal, progressive politics and defending actions that, had they been carried out by the previous administration, would have been seen as inexcusable. With each consecutive story, we think, “Finally! People will see him for what he is (or has become…)!” And we hope his constituency will start aggressively trying to pull him back to what Howard Dean called, “the Democratic wing of the Democratic Party.” But instead, we find the same people bending over backwards or tying themselves in ideological knots in an attempt to justify his (from a left-leaning, progressive point of view) indefensible actions.

    As you can imagine, this, in itself, creates a great deal of frustration and anger.

    (Tangentially, I know Obama claims to be a big fan of The Wire, as well, so I’m sorry if my casting aspersions on the integrity of one of your most renowned fans offends you in any way… Haha…)

    My overall point here is this: There is no excuse for scare tactics and overreactions in news media when stories like this break. But when it comes to the kind of aggressive (and sometimes hostile) arguments you’ve been dealing with on your blog in the last few days, I think it might clear the air a bit to say that the outrage seems outsized because I don’t think anyone is reacting to this one particular story. I think this story has become the vessel for years of frustration and anger, and as such, unavoidably results in explosions of hyperbolic grandstanding.

    I think both the betrayed and the unsurprised were a little thrown by Friedman’s column in the New York Times (Sorry, but it seemed weak and disingenuous to me, despite his having the wisdom to quote you…), not because we have any love for Friedman, but because it was slightly jarring to hear him so casually throw his full support behind something so very vulnerable to authoritarian abuse. To then see your quote (I think – and you may disagree – a little deceptively out of context, since you were writing about Verizon and he was writing about PRISM) really threw people for a loop. Since many of us respect you as a “neo-Marxist arguing against the totalitarian overreach of the drug war,” the hair-trigger response of many passionate leftists – the Obama-betrayed and the Obama-suspicious – was to storm your blog and force you to answer for your thought crimes.

    There is no excuse for this, either, but the comments section of your blog is not a news publication and is subject to very little editorial oversight, so you get a lot of people not thinking or arguing very clearly because they are in an extreme emotional state. Your patience and level-headedness are greatly appreciated, and your commitment to intellectual and verbal clarity from all parties is admirable. But I wanted to restore (or perhaps further reduce) your faith in your readership by suggesting that a lot of the hostility, histrionics and sloppy reasoning you encountered were not so much the result of Snowden’s whistleblowing, but instead, the result of strong, but burdened minds collapsing under the weight of that final straw.

    At the time, I didn’t post my responses or arguments to your initial post because it was clear that, in various ways, others had already said a lot of things I would have, had I gotten here earlier. There are still some points relating to this story where I simply disagree with you. You have a lot more experience and more facts on your side when it comes to the practice of surveillance before and after 9/11. But I have to say, despite your reassurances, my personal ire, as it relates to this particular news story, was not so much mollified by your clarifications of how surveillance has always been conducted, as it was further inflamed to realize to what extent this sort of thing has happened all along. I find that I often have this reaction when I read, or view, your work. It is one of the reasons I respect you so highly as a writer.

    • Hey Mike,

      From the original post which so upsets you:

      “When the Guardian, or the Washington Post or the New York Times editorial board are able…to show that Americans actually had their communications monitored without sufficient probable cause and judicial review and approval of that monitoring, then we will have ourselves a nice, workable scandal. It can certainly happen, and given that the tension between national security and privacy is certain and constant, it probably will happen…”

      See the fresh post. If this story stands, it’s what an actual scandal looks like. Not bullshit. And that paragraph above doesn’t read exactly credulous to me.

      • Yes sir. And I say that sincerely, not snarkily as I have the utmost respect for your work and what, admittedly little, I know of you personally. I did not mean to imply that you were credulous, and my posting of the link was done nearly simultaneously with yours. You have my apologies, as I made the fundamental mistake, in a way, of seeing only what I wanted to see.

        • I drew the line where I believed it should be. And this story, if it holds and is corroborated, crosses that line.

          Now is the time and this is the place to fight for real reform of the closed-door FISA process. If this was approved by that court, in the dark, so much the better in the long run. Now, there are bullets in the guns of civil libertarians.

  • I’ve got to think that this will be a game changer for you:

    ‘The National Security Agency has acknowledged in a new classified briefing that it does not need court authorization to listen to domestic phone calls.

    Rep. Jerrold Nadler, a New York Democrat, disclosed this week that during a secret briefing to members of Congress, he was told that the contents of a phone call could be accessed “simply based on an analyst deciding that.”

    If the NSA wants “to listen to the phone,” an analyst’s decision is sufficient, without any other legal authorization required, Nadler said he learned. “I was rather startled,” said Nadler, an attorney who serves on the House Judiciary committee.’

    You have got to know that that means that is has been done.

    • From the original post:

      “When the Guardian, or the Washington Post or the New York Times editorial board are able…to show that Americans actually had their communications monitored without sufficient probable cause and judicial review and approval of that monitoring, then we will have ourselves a nice, workable scandal. It can certainly happen, and given that the tension between national security and privacy is certain and constant, it probably will happen…”

      I wasn’t being credulous about the possibility. Not at all. But I am as good as my word. There is a new post up. This, if corroborated, is the place to fight. Not that other bullshit.

      • I can only refer you back to my comment(s) saying my problem with your argument was the “if.” And: We got to this because of that other bullshit.

        Note: This needs more confirmation, of course.

        • Sorry, Thom. A fact is a fact. And speculation is spit.

          And, you know what, it’s a little too quiet tonight in the wake of that story which moved almost an hour ago. Now I know it’s a Saturday night in the news cycle and it’s gotten late. But I also know that by running bullshit up the flagpole as a real scandal the week before, the advocates for civil liberties alienated and jaded a lot of Americans who looked at the metadata shit and said, who cares. This isn’t important.

          Had the advocates played only the cards in their hand and waited, they would now have a better and louder entree for a campaign of political and judicial reforms. Here’s hoping you can bring everyone back to pay attention. My level of interest isn’t exactly typical. A lot of people went through the first, faux-scandal cycle and made up their minds about all of this. And that, from a realpolitik standpoint, is regrettable. The “if” matters. Talk about what is proven. And don’t paint yourself into a corner by baiting your hook with the speculative.

          • I really am sorry that this might further a ping pong game – as I’ve already commented also on your new post, but I have to respond to this here.

            You are simply wrong. That is of course my opinion only, but the hullabaloo created by that first story GOT US THIS STORY. And it already got a ton more sunlight on a bunch of stuff you said needs more sunlight, so you seem to be fighting yourself half thte time here. You seem to be saying, “Hey I didn’t say the gun wouldn’t go off, I’m only saying that you spelled “in the hands of a todler” wrong!

            • Yes, we disagree. I want to act and think and argue as a citizen over actual facts, and try to rationalize my opinions based on what I know to be true. Not what I think might be true in the future, or what I fear might be true. Because, my sentiment, going into this argument was what I declared it was: the metadata is an asset that can be used to counter criminal activity, and is routinely used to do so in domestic law enforcement, and it is also an asset that can be misused, and likely will be at points.

              I can’t know that it won’t prevent a major act of terror. I can’t know that it won’t be abused. And I am honest about what I can’t know.

              So my position remains the same. Allow the legal use of the data and punish any misuse and make any processes that allowed the misuse in the first place more accountable and subject to greater oversight. Address not the singular uses of new technology, which are going to be coming at us fast and furious for the rest of our days, but address and correct the systemic, so that the democratic structures of government are more and not less capable of addressing the merits and demerits of new technology.

              Thom, I am never going to buy into hype as a tactical or strategic or public relations asset. The wages of that are, in the end, awful.

              And to point out what I mean: Right now we are waiting to see if this story has legs, and if the NSA has actually been caught illegally wiretapping Americans. If so, then it’s a key moment. If not, it’s the second overselling of the real in little more than a week, and Americans will be that much wearier the third and fourth times — and even the time that civil libertarians come with something truly legit. Something about a crying boy and a wolf. No, as with an illegal wiretap, your proposal to throw everything out there and create a shitstorm regardless of its proven credibility, and then reap the benefit is ends-justify-the-means short-term thinking. Truth is the weapon that lasts.

              • 1) First thought: Doesn’t that fairly completely ignore the issue of a public trust? I’m sure you agree it’s a real and important thing, and it’s not, at least not always, about *facts*.

                2) Your angle on this “pretend scandal” has been about *aspects* of Snowden’s leak – to downplay *all of what Snowden told us*. He did, for example, tell us that NSA nobodies could decide themselves to listen to content – exactly what we’re hearing about now. (Although I have to stress again that we need to hear more.)

                • Exactly. My point proven in your very post.

                  When Mr. Greenwald oversells what the phone metadata program is or isn’t, then other allegations receive less credibility — such as Mr. Snowden’s allegations of low-authority wiretapping. Boy meet actual wolf; fewer villagers taking seriously the cries.

                  Truth, Thom. It’s not only a virtue, it’s more effective in the long run. Say what’s true. Don’t hype. Wait for more facts. As right now, we are waiting to see if the CNET allegation is confirmed or falls apart. The cost of it falling apart is not merely a shot going wide in a hype war. It would be another alienating moment for a lot of Americans — a majority in fact, according to polls — who thought the NSA metadata only a week ago was, in the final analysis, less than advertised.

                  It’s cool. We can just leave it as agree to disagree. I’m not going to convince you and I’m sure not gonna be convinced otherwise.

                  Meanwhile, is anything on the wires? Or has this congressman also gone underground now? WTF? I know CNET isn’t the NYT, but the allegation seemed to be specific enough that it should either induce some corroboration or some denial. Tomorrow then, past my bedtime after a long day’s summer block party. ‘night.

                  • It’s just late. Giver it a bit more time.

                    And from the CNET story:

                    “William Binney, a former NSA technical director who helped to modernize the agency’s worldwide eavesdropping network, told the Daily Caller this week that the NSA records the phone calls of 500,000 to 1 million people who are on its so-called target list, and perhaps even more.
                    “They look through these phone numbers and they target those and that’s what they record,” Binney said.”

                    Is this still for you okay, based on your different scale argument? A million – maybe more – people? Jesus.

                    It’s been eye-opening. I appreciate it. I think when this is alldone you may say that mistakes aside – it was all really worth it. Possible?

                    • Binney’s number could be entirely accurate. If an American spies can eavesdrop of 1 million targets worldwide, I’d say they justify their budget. REmember, Mr. Binney isn’t talking, I don’t think, about Americans in that statement. The NSA is supposed to spy on officials and selected targets around the globe. One million out of 7 billion is still pretty impressive, but hey, that’s the entire agency’s raison d’etre.

                      On the other hand, if they’re spying on Americans and accessing the Fourth Amendment-protected privacy of Americans, that’s the issue.

    • You know, in the zeal to write about privacy as an ideal, and to make a philosophical point about the inevitable tension between civil liberties and security, no one wants to actually get down and deal with what we’re actually talking about.

      Ms. Cox notes that most Americans are okay with the government having our phone metadata and most are not okay with the government reading our emails. Yet she never arrives at why those statistics might diverge: That one is less intrusive — and reflects the absence of content and a certain measure of government restraint, and the other is a more intrusive invasion of privacy. Americans are actually much smarter about this than we give them credit for. Provided they get a full, calm explanation about what the government is and is not doing. It’s why you have to discuss the telephonic datapile and PRISM on separate tracks. Because the details fucking matter.

      • One of my concerns, which may reflect my life in the software world, is that phone call metadata may be more intrusive than many people think. Over recent years we can store a lot more data and we’ve developed sophisticated techniques to mine large datasets for meaning. The question is whether these changes turn phone call metadata into something that requires more care and controls than have historically been the case.

        • Agree! Which is the realm in which other “metadata” such as internet communications finds itself. The telecommunications privacy restrictions have not been coherently advanced for the internet world, and it is unclear at this point — depending on what kind of data — whether when you acquire internet data you are not, in fact, acquiring communications content wholesale, the equivalent of what would require a specific warrant and wiretap in the telephonic model.

          At this moment, I am worried more about the possible domestic application of the PRISM program, than about phone metadata as it now exists. But as you say, if any metadata becomes effectively content and not merely usage stats and whatever those stats imply — if it becomes human person-to-person communication, in whatever medium — well, then the Fourth Amendment is under real stress.

  • Thought you might find this interesting, David:

    “As a former Article III judge, I can tell you that your faith in the FISA Court is dramatically misplaced.

    Two reasons: One … The Fourth Amendment frameworks have been substantially diluted in the ordinary police case. One can only imagine what the dilution is in a national security setting. Two, the people who make it on the FISA court, who are appointed to the FISA court, are not judges like me. Enough said.”

    • If I had expressed excessive faith in the FISA court that article would be something of a surprise. It is the FISA court and the FISA process that needs some sunlight, a good deal of independent oversight and significant reform. That is, indeed, my target. I keep saying so.

      This datapile, no.

      Is it possible that I don’t have to highlight this another fifty times? No one here is defending the construct of the FISA court. It can’t work in a democracy for anything to be so secret and unattended by independent eyes. It’s better than what came before which was exactly nothing — no judicial review of national security cases whatsoever, wiretapping by executive order without review, etc. — but it is not what we need. Maybe everyone who signs on me needs to hear me trash the FISA process, separately, to them, personally before they begin to believe I mean what I say.

      • I should have highlighted the remarks about the dilution of the Fourth Amendment, which is what made me think of linking this here.

        • For that, it’s a whole ‘nuther issue, right? The composition of the U.S. Supreme Court and the ideologies of the working majority thereupon. Even Earl Warren’s ghost has left the building. Which, of course, has no origin in the national security dynamic. That’s the direction of the country from on high.

  • I think, I hope, all here are ultimately concerned here with the philosophical kernel(s)—that give us our current “knot,” our bind— wonderfully contextualized by “GOLLY” as a set of systems and institutions that are axiomatically designed, regardless of intent, to inevitably “produce” abuse. Proactive safeguards and oversight, much like pre-emptive(a NeoCon hiccup) and proactive measures in the name of risk mitigation and “security” are the key element in this moral thicket. This applies to “Framing” the Constitution in the late 18th century, to cascading data piles and algorithmically generated threat matrices in the 21st century fortress in the state of Deseret.

    Discursively, recursively we are all flailing towards a balance between personal liberty and security, privacy and collective responsibility, and on and on. What are the philosophical lodes upon which we are collectively drawing and inadvertently shaping public discourse from? Where and how do they ultimately lead us to the origins (and terminus) of our respective political projects and ad-hominem ghettoes? Needless to say, we have erected shibboleths in our respective exurbs and gated communities in complete ignorance of the resource flows and firmament upon which they reside. Here, I salute Mr. Simon in his steadfast commitment to holding “ideological prime-directives” in abeyance. However, I think for this conversation to continue (and maybe even progress both as rhetorical exchange AND pedagogical opportunity) we must turn our awareness to the genealogies of our respective positions. We might, in simpler times, call this context. If this forum holds itself to the generally rigorous standards Mr. Simon’s brought to the task at hand—and the courage to challenge foundationally reactionary political belief—I suggest we start somewhere. Maybe even a small reading list? To get the ball rolling, I highly recommend looking at the crucial difference between the ways we are using “surveillance” as a rhetorical metaphor, and “capture” as a foundationally philosophical project. This is fascinating, and scary work. Thanks for getting it started. Oh wait, I sent a bike over the hill. Let it continue to roll. My suggestion:

    Agre, Philip. Surveillance and Capture: Two Models of Privacy. Information Society 10(2):101-127. April-June 1994.

    This can be found with some ease, free of cost, online.

  • “Briefly, by creating the biggest haystack possible, by NOT excluding anyone from the data base, this program is actually, in practice and with regard to individual Americans, one of the least invasive and most discriminate acquisitions and uses of metadata I have ever encountered in all my years of considering, observing and writing about law enforcement.”

    Thank you for making this crucial point. The bigger the pool, the more anonymity afforded the average citizen.

    • It’s counter-intuitive at first glance. By the second glance, you hope that more people, thinking on it, begin to see.

  • “[B]y NOT excluding anyone from the data base, this program is actually, in practice and with regard to individual Americans, one of the least invasive and most discriminate acquisitions and uses of metadata I have ever encountered in all my years of considering, observing and writing about law enforcement.”

    … And also: war is peace; freedom is slavery; and ignorance is strength.

    • Oh good. More righteous, over-the-top hyperbole.

      How about coming down to earth, Thomas Paine. We live in a society that measures itself not pure liberty or pure responsibility, not in the achievement of perfect privacy or complete security, but in the natural and inevitable tension between those necessary attributes and values of democratic citizenship. When the government stops every car at a DWI checkpoint, it’s constitutional. When the government decides to stop only the cars it wants to stop at a DWI checkpoint, it’s not constitutional. Gee, maybe somewhere in all that case law there is actually a qualitative, legal issue in terms of how justly the intrusion is applied.

      Except here, with the metadata, no one is even stopping your car and making you blow into a breathalyzer. They’re just standing at the roadside and recording whichever cars pass, writing down license plates, and time of day and date.

      But wait, you say. I need a license to drive a car. So I relinquish some privacy rights, and the road is in public view, and how is that….

      Oh right. Third-party consent. No one has ever established any privacy right for contractual data that you share with a phone provider. Not in the entire modern history of U.S. telecommunications law.

      I confess that I have a small, quiet smile at the notion that self-actualized, politically attuned white folk all over the globe are suddenly encountering the fundamentals of thirty years of U.S. case law as if they’re emerging from the womb itself. It was no worries when we were just pulling whichever tens of thousands of phone calls of innocent, non-drug-dealing black folk off a cell tower in the heart of West Baltimore or North Philadelphia, or out of the North Avenue payphones. That was law enforcement. Never mind that it was asking a demographically biased, race-biased, socioeconomically biased segment of the population to endure modest privacy affronts all by their lonesome. But wait, now the government wants my calls? Everybody‘s calls? Now they’re going to include me in the same deal, as if I’m actually a part of the same society as the rest of those luckless mugs? Wait, how long has this been going on?

      I know, I know. Now, that it’s about you and yours, you are shocked, shocked to learn of it. Give you liberty or give you death and so forth. Etc, etc, etc.

      • Amazing to me how many people are so much more upset at being included in the the game than they are about things like racial profiling, or crack-dealers/users receiving medieval punishments for things many of us middle class people engage in all the time. And please, leave Orwell out of it. It’s Huxley, stupid! What did people think was happening when the Patriot Act came in to law a decade ago? That the Gov. was only gathering info on brown skinned “foreigners?”

        By the way David, I don’t know if you’ve seen this yet from the Nation but I’ll pass it along for others as well…

  • Moreover, you are the first person I have heard suggest that the NSA data pile contains recorded conversations. Please resolve that. I do not believe that Verizon actually has the capability to even record all of our conversations, much less turn over recorded content of all its phone calls, even if the government asks.

    This is not the first time I have heard this assertion and it does not strike me as technically infeasible. A former FBI agent even stated it in a shockingly blase manner a little more than a month ago.[1] The ability to split off all audio call traffic and record it for later potential use is exactly what Mark Klein’s revelations about things like Room 641A suggest is being done. (and what you’re really talking about is the splitting off and recording of all internet traffic, of which audio call data is only a subset)


    • Okay, you are the second person.

      If that datapile has conversations captured in advance then it is not metadata. It’s a wiretap. And there should be much more than a FISA-approved court order, there should be a wiretap affidavit and signed warrant. If there is a signed warrant for all of the conversations of Americans for the last seven years, I’d love to read it. That would really be news. And it would be far different from what either the Guardian or the government is now arguing about.

      That doesn’t make any sense? Never mind the technology. How is Verizon legally capturing ever phone conversation and then turning it over at intervals? What is Verizon’s legal standing for recording them in the first place on any framework, in any technological device. You have no expectation of privacy for your metadata. Every one of us has a Fourth Amendment right against being recorded. Even for Verizon to do such a thing in a dormant state is recording. That is indeed a wholesale violation of the Constitution, and different from everything that anyone on any side of this issue has yet alleged.

      Are you alleging it? Or are you simply posting something so additionally Orwellian and conspiratorial that we will never climb down into discussing the reality sensibly?

      • Seriously. Having done the extremely heavy lifting required to get a Title III, and keep it running over 90 days, all this fantastical talk cracks me up. The manpower and storage space needed to record and store all the conversations alone would make it impossible. (although, if it were a law enforcement job the overtime would be awesome)

        Not to be overly snarky, but you guys understand that shows like CSI, the Bond Films, and the latest Batman trilogy aren’t reality based….right?

        (ok, I reread that, and it is extremely snarky, sorry)

        • It’s a huge storage facility in Utah. I believe that god himself can, with enough money, make a rock so big he can’t lift it.

          But how about for Verizon to store all it’s actual conversations in America, if such a thing were not violative of the Fourth Amendment on its face for Verizon to do so. Metadata, yeah. Conversations, targeted and with a wiretap. Or am I losing my mind? And is everyone on all sides of this including the Congressional critics of this program, not talking about the elephant in the room? Mr. Shirkey was merely referencing what could be done with a wiretap, no? Not with metadata. WTF.

        • >The manpower and storage space needed to record and store all the conversations alone would make it impossible.

          No, not at all. More than feasible with off-the-shelf commercial software, and that’s been true for a decade. Its easy enough to compress a Tb file down to about 100Mb, and decompress the stream in parts while you read it. A five minute phone call is an uncompressed 5Mb Mp3 file; compress that even 10X and do the math. Its not hard at all to store and read every phone call.

          So you’re not up on the technical details; who cares, right? Simon’s point is that there’s a wiretap requirement here, so *it doesn’t matter* whether its all stored. The NSA doesn’t legally have the authority to listen to the compressed Mp3 of your phone calls unless it gets the authority.

          But the NSA has been listening to phone calls and reading emails for years because its does have a content-based wiretap authority. Google up ECHELON: The NSA claims and is legally authorized to read the signals for content and then investigate further, and has been doing so for years.

          I think what Shirky is trying to demonstrate is not that you need detailed gee-whiz technical knowledge here. But you do need to understand that the “manpower” and human judgment required here is minimal; its no longer inserted at the point of deciding whether a wiretap is required. That may not be an issue: someone, after all, still needs to listen to all the calls the machine has decided is interesting. But the NSA’s method, as its currently used, is the equivalent of having a microphone in every car in the neighborhood, and every time someone uses the word “coke” an analyst gets a notice and listens to the conversation in the car to see if the occupants are talking about something interesting.

          Is that legal? Well, to your point, metadata collection (and *tagging*) is all perfectly acceptable. But is that really what you mean by “metadata” collection? That’s what Shirky is trying to ask, because its not the same kind of metadata we used to collect, and the old kind had a manpower requirement that’s just not there anymore. We just collect metadata and use that to identify possible suspects; no big deal, legally. Except that gives us the ability to listen to a lot of phone calls, without the same thing as the old probable cause.

          • Wow. His storage point aside, which I also questioned, that is NOT at all what Simon’s point is. You’ve misrepresented me.

            Let me ask a direct question: Is that haystack of phone metadata gathered at the Utah facility — is it the metadata — call numbers, date, time, GPS of parties — that has been demanded of Verizon as per the leaked FISA court order, or, is it recordings of actual conversation. If it is the first, then everyone involved in this controversy — the government, the congressional critics, the supporters, the intelligence and law enforcement officials all seem to be arguing over the same thing. If it is the second, if Verizon records the content of every call, without a wiretap authorization, so that it is retroactively obtainable from the metadata, then the world as everyone is reporting it just blew up. Its a direct question. Enough theory. I just want a direct answer.

            • Why does it matter if Verizon records the calls or the NSA does? If the NSA records the calls and then asks Verizon for metadata so it can identify and listen, why does that change your position? And I’m not being hostile in asking; I’m not a lawyer or a cop, I’m a data architect.

              Verizon has been very specific about the number of days of metadata they store. They have no legal requirement to store more, aside from billing disputes or LE requests, but there’s enormous business value in storing as much as they possibly can. Fewer dropped calls; targeted ads and offers; the list is endless. I have personal experience storing and tracking user weblog data, and we store all of it for as long as we can, including content and your PII, e.g. your email address, credit card #, everything. But even a medium-sized SAAS/ecommerce company only generates 30Tb of uncompressed data a year, which costs about ~$5000 in storage.

              Verizon has no interest in what you’re talking about, probably, just that you called your mom, and of course they have to tell you whenever they record you. Everything else? Waiting for some kid to show some initiative and get his bonus.

              But if I look at the slides Snowden leaked, I see “Upstream: collection of communication on fiber cables and infrastructure as data flows past.” Everyone has focused on PRISM, which is a sideshow. BLARNEY and FAIRVIEW and [redacted] are, ostensibly, collecting the traffic.

              So does the haystack have one or both? I obviously think both. But I’m just a guy on the internet with a theory, so I’ll cite someone more credible that myself: Curt Monash is a very sensible big data consultant and he has a good summary here:

              Here’s another set of reasons to think the haystack includes both, from Brian Ross’s ABC report in 2006 (which I’m sure you’ve seen):

              So I would like a direct answer too. Knowing what I know, and how thick the notion of “metadata” is in the big data industry, when I hear “they’re only tracking metadata” I think they’ve got everything. Its not a matter of paranoia or anti-government sentiment. I already track everything you do on my customer’s websites. If you tell me that there’s some kinds of content I can’t look at without your permission, I’ll happily put it in a lockbox. But I’m not going to stop collecting it, because when you do give me permission I’ve got it all.

              And I’m not clear why you think the NSA thinks any different – why wouldn’t they record everything? Its not that they’re listening to it; they have to wait for FISA to say ok.

              So I can’t provide you with a direct answer. I can tell you that its pretty clear, in my industry – and we all live in the shadow of the NSA in my industry – what we already do.

              But I do know who can provide you with a direct answer. They’re telling us all that they can’t, though, because that would damage sources and methods.

              • Dave, I can’t go back to find you with a lifeboat on this. You’re gonna have to swim toward shore, because you are out past the last bouy.

                You don’t seem to know that the metadata does not contain conversations. It physically does not possess them.
                It is an altogether different electronic item.

                You want to record someone’s conversation, you use the metadata — as well as other evidence, such as surveillance, other documentation, informant info, etc. — to write an affidavit. Then you get a judge to issue a warrant for a wiretap. Then you talk to Verizon and ask you to set up the tap on a specific number. Even if there was conversation embedded in the same digital device as the metadata — and there isn’t — it is inadmissible retroactively. The wiretap records conversations from the moment that the wiretap warrant is signed.

                But most of all, the metadata is not human conversation and does not contain human conversation, according to everyone on all sides of this argument right now.

                Don’t know what else to tell you, brother.

            • I guess it comes down to this: If part of your point, however valid it may be in general, is that its not technically feasible to record all phone calls into the US, that its just Bourne Identity fantasy, then I’m telling you no, it is technically feasible. Its commercially feasible, frankly, i.e. within the private sector. And I’m telling you that from inside the private sector. Your web data footprint is larger than your phone call footprint, and most of your web data is already tracked and stored by private companies.

              • Again, in order to coherently discuss any of this, you must discuss internet data, separate from phone data. And frankly, implying that the haystack of phone data in Utah had any recordings was a little irresponsible. It does not. Content is not accessible. Let’s discuss what the government is doing, not the sum of all conspiratorial fears. It’s topic enough at this moment.

                • “Content” is not accessible. Agreed. The NSA needs probable cause to listen to the call. They won’t listen to the call unless the metadata is somehow able to prove there’s a reason to listen to it. Verizon provided them the metadata they had in their possession after being served a warrant. And they don’t have a file server with “recordings” in Utah, despite what Brian Ross’s sources said.

                  Do keyword counts amount to metadata or content? The NSA can already do keyword counts on email. Its much easier to do them on calls now too – my car can do keyword counts – because its all carried on packets, and those packets are all obtainable off the cable on Folsom in SF.

                  If we could do keyword counts on calls then that would frankly cut down a lot on all the false positives, which as you mentioned above is one of the benefits of having all that metadata.

                  So how does the NSA create that kind of metadata? They don’t get *that* from Verizon. So where are the call packets sitting so they can do keyword summaries? I’ve got to put them somewhere, if I’m the NSA.

                  Of course, I can hear you now: that’s just speculation. Why would the NSA do keyword summaries on phone call packet data? Sure they do it for email and web pages and all the text-based stuff, all of which are now just packets, just like phone calls are. Phone call packets are sacrosanct. I’m sure they sift the packets they get out of the backbone on Folsom for phone calls, and also look for the country codes, and throw them out so they don’t have any “recordings.”

                  • Dave,

                    You know how you are NOT SUPPPOSED TO WRITE ON CAPITAL LETTERS unless truly provoked and unless the need is great. Well, forgive, but:



                    There is enough in this issue to discuss here without pretending to alternate realities.

            • We now *know* it’s the at least the former. Everyone fears/suspects it’s the latter, too, and are awaiting the seemingly inevitable confirmation via the next leak.

              • Okay, so I haven’t lost my mind.

                Well then, you are not arguing against the actual purpose and methodology of the NSA program in question. You are mortified about the possibility of something. It’s plausible to have a discussion about the implications of an actual technological endeavor, its risks and purposes. It’s hard to say much that can matter about the sum fears of every proposed conspiracy.

                Let’s cross one bridge first and deal with the government actual is doing.

                • I would argue against the bulk metadata collection, too. That is wrong. That it was ruled legal in the past doesn’t make it less wrong. Your continued refusal to consider that it is harmful, or at least more harmful now than in the past or more harmful in bulk than in isolation, is disappointing.

                  Discussing bulk phone metadata collection without discussing the extremely plausible case of what they are doing (bulk phone metadata *and* data recording) is not productive. I see you’ve already posted another news item about the latest article from CNet where Representative Nadler confirmed this exact scenario. I wish you hadn’t been so willing to trash this obvious and inevitable “news”.

                  • Actually the CNet piece goes out of its way to separate the bulk metadata mining from the new allegation of wiretapping. Again, if they want to target someone, they can. They don’t need to gather all the metadata from seven years of all American phone calls. The two have separate investigative logic.

                    No one has yet alleged that the big haystack of metadata contains actual conversations. If it does, then Verizon itself has been wiretapping all of us for years without legal warrant. Not even Mr. Snowden suggests this is the case.

              • Uhm…if they were listening to every conversation why wouldn’t have ol’ Snowden went ahead and told us that too???
                b/c it ain’t happening

                • No, they’re not. But the speculation offered was a step short of listening. It was being contended that the data-pile of metadata contained the conversations, latent, that these conversations were there, stored, to be plucked whenever the government got a warrant to do so. That, too, is not true, according to even the strongest allegations of NSA’s harshest critics.

                  You can’t record conversations without a warrant and store them, latent, on the claim that if you don’t listen to them, it isn’t an illegal wiretap. It’s patently unconstitutional and Verizon would be incredibly liable to its customers for even maintaining such data. And the NSA would be off-the-charts rogue. And the Verizon court order is for meta-data only. The only thing in government possession is time of call, duration, the numbers involved, the GPS of the phones at the time. Conversations? Without a FISA order for a wiretap of specific numbers, with specific affidavits from investigators chronicling probable cause and meeting investigatory standards of exclusion? No. That’s just tin-foil stuff that a couple people here launched without the slightest connection to reality.

                  If it shows up again as a thread, on pure speculation, it goes to the kill file. There’s enough real detail to discuss in this controversy without the masturbatory conspiratorist shit.

                  • “You can’t record conversations without a warrant and store them, latent, on the claim that if you don’t listen to them, it isn’t an illegal wiretap. It’s patently unconstitutional and Verizon would be incredibly liable to its customers for even maintaining such data. And the NSA would be off-the-charts rogue.”

                    Yes, that’s exactly the point.

                    “And the Verizon court order is for meta-data only. The only thing in government possession is time of call, duration, the numbers involved, the GPS of the phones at the time. Conversations? Without a FISA order for a wiretap of specific numbers, with specific affidavits from investigators chronicling probable cause and meeting investigatory standards of exclusion? No. That’s just tin-foil stuff that a couple people here launched without the slightest connection to reality.”

                    Apologies for the insults are welcome. Maybe they’re in your next post.

                    • Honestly not tracking.

                      Even the CNet story says the wiretapping of American calls is “separate” from the metadata program. Are you again saying otherwise? Basis?

                      You do understand, do you not, that not even Mr. Snowden has alleged that Verizon has been recording the content of calls and turning them all over to the NSA for seven years? If that is so, then that’s a much, much, much more important story for the Guardian to report.

                      The CNET account seems to declare that the alleged wiretapping is separate from the metadata collection. That if they find a needle in haystack, they can go up on a number and wiretap it. What is an affront is if, as the CNet article claims, they can do it without court approval.

                      I’m always content to apologize if I have something wrong. But I’m really lost by this post. What are you saying?

          • You have oversimplified the process of what it would take to record every phone conversation on Verizon’s network in order to fit your argument. It is not feasible from a technological or financial stance for Verizon to record every phone conversation.

            It will likely be possible some day to record, annotate and record every conversation that passes through a telecom but it’s not today.

            • There is no “recording” of phone calls. All I need to do is direct a copy of the packets to someplace of my choosing – say, a giant server in Utah. Whether the intended destination of those packets is a phone call to a pizza delivery guy or a Facebook page doesn’t matter; I can figure that out later. The point is that I just need to copy the bits somewhere.

              I used the Mp3 example to give Simon an idea of the amount of data we’re talking about here. But recording calls as discrete events is very inefficient.

              • Dave, are you confused about what the Verizon court order is for internet data or phone meta data.

                Because it’s for phone data only. You have commingled the PRISM data-mining with the phone data. My initial post was about the phone data as the PRISM revelations came a day later. Also, the phone data is being gathered domestically. PRISM, so far, no.

                You need to argue the two things on separate tracks. They have separate implications, separate legal standing, separate jurisdiction in terms of overseas and domestic. By lumping everything together, you’re being imprecise and confusing and making coherent discussion impractical. It isn’t one program and it isn’t one data-pile and different legal protections of gaps in protection exist for telephonic and internet data. Regroup, man.

              • Your math on the data is off. A five minute phone call recorded by a telecom is not going to be a 5mb mp3 file. A standard audio codec is going to be much larger. You also aren’t going to get the same compression rate on audio that you do for the logs of metadata. Also, trying to search a compressed file is very difficult.

                You also seem to be forgetting that Verizon has 100 million customers. To record the conversations of 100 million customers and then store them is going to be tens of Petabytes of data a day. It’s not realistic to think that Verizon is recording the phone conversations of their customers on a daily basis and then transmitting that information to the NSA. It’s even more unrealistic to think they are live streaming audio conversations to an NSA data center.

                As far as the rest, David has explained several times why you are offbase on the idea that conversations are part of the metadata. Both in a physical and legal sense.

                • There’s three arguments here:
                  1. The legality of listening to phone call data. I don’t think this is in doubt: can’t do it without a warrant.

                  2. The legality of the storage of phone call data. No one – no human being – has listened to it yet, but its been tagged with more-or-less metadata that can tell me the basics about the content – who the call was between, length, etc. – plus other things about the content, like keyword counts. Is this legal or not? This is my question above: do keyword counts on conversations count as metadata or content? If its the latter, then great. I’ll put my tinfoil back

                  3. The technical feasibility: Here you’re just out to lunch. People upload 30 hours of video to Youtube every minute, and they only ever watch an hour of it. You think its more difficult to compress, store and keyword-process 100 million phone calls a day, most of which contain completely empty space? Its non-trivial, but managing similar problems has become a very lucrative business model and its done everywhere.

                  • Allowing this post for 3. a technical discussion about which I can’t bring myself to any attentive rigor.

                    1. No shit. There’s no argument worth having if you are sentient. Except to point out that you “don’t” listen to the date. It isn’t conversation. At its core, it’s the shit that’s in your cellphone bill, on a page, with saome additional GPS and technical data as well
                    2. Dave, Dave, Dave. Bend your mind, please. Last call before I start killing out your stuff. I don’t wanna, but, you are resistant to reality. It isn’t something that isn’t “listened to yet.” They don’t have the conversations in any form. It is data. Not audio. There are no recordings being done by Verizon or turned over to any part of the government. For that, you need more than this Verizon court order for metadata. YOU NEED A FUCKING WIRETAP.

                    Dave, you have threechoices at this point, bless your heart.

                    1) Concede 2. outright.
                    2) Provide any shred of proof — not theory, not speculation — but proof, acknowledged proof that 2. should not be conceded and that Verizon recorded billions of phone calls over the last seven years from 100 million customers.
                    3.) Have the webmistress drag your unlistening, inattentive, and/or paranoid conspiratorist self to the kill file. Either that, or I have the NSA approximating your coordinates and we call in an airstrike on your position, in order to get a reality-biased discussion restarted up in here.

                    This is astonishing.

      • It all stems from this strange interpretation of seemingly common-sense words like “collect”. The agencies have convinced themselves that recording a phone call (or email or whatever) and storing it for later potential use is not collecting it, that it only counts as “collecting” at the moment in the future when they decide they need to look inside at the contents – listening to the audio, reading the email body, etc. This is why you can have DNI Clapper seemingly baldly lie to senators. When Wyden asks “do you collect any type of data on millions of Americans?” and Clapper answers “no”, he’s not lieing … if you use his meaning of “collect”. Their definition of “collection” is decidedly at odds with reality.

        “How is Verizon legally capturing ever phone conversation and then turning it over at intervals?” They wouldn’t really need to. Verizon could feasibly just split off a copy, live while it’s passing through their system, and send that pipe into their version of the AT&T Room 641A for the NSA to do what they want with it. Verizon could reasonably claim they are never recording or storing the data passing through the network.

        • Ralf, to be clear, I am copying a recent answer to Dave:

          “Dave, are you confused about what the Verizon court order is for internet data or phone meta data.

          Because it’s for phone data only. You have commingled the PRISM data-mining with the phone data. My initial post was about the phone data as the PRISM revelations came a day later. Also, the phone data is being gathered domestically. PRISM, so far, no.

          You need to argue the two things on separate tracks. They have separate implications, separate legal standing, separate jurisdiction in terms of overseas and domestic. By lumping everything together, you’re being imprecise and confusing and making coherent discussion impractical. It isn’t one program and it isn’t one data-pile and different legal protections of gaps in protection exist for telephonic and internet data. Regroup, man.”

          Talk about the phone metadata on a separate track from internet data, because I have dealt with the two things indepedently. And my original post was only about the implications of the Verizon phone data court order. The PRISM program hadn’t even been revealed yet when I posted that. And PRISM is a separate dynamic, with separate legal standing, separate jurisdiction, separate issues. I know they seem linked, and they are in the sense that they both represent government data-mining, but programmically, and in terms of their current limitations and legal standing, they are different.

  • Okay, here’s what’s up. David is an established expert on US domestic (especially drug) policy, and he attacks it with a giant ax, arguing the whole thing has to go. Glenn Greenwald is an established expert on US foreign policy, and he attacks IT with a similarly enormous sledgehammer, saying to hell with the whole damn thing.

    Simon instead takes a scalpel to the NSA issue (which is borne out of US foreign policy), assuming the legitimacy of some premises, and attacking its critics on extremely technical grounds. Greenwald, similarly, takes a scalpel to the domestic issue of Citizen’s United, arguing that it’s *good* on very weird and technical grounds.

    What’s up with both of you using, somewhat funnily, an ax on your competencies, and a scalpel on secondary interests? Does intensive knowledge produce grand unified theories, or is it genuinely issue-specific?

    • How about this for a fundamental truth: If you believe in a unified-field theory for every issue and policy that confronts the very complicated task of democratic self-governance in the modern world, you are about to say or do something really stupid. A unified-field theory might be otherwise known, in political circles, as ideology. And the idea that following an ideological prime-directive through every possible issue, circumstance and political struggle is going to lead anyone to correct decision-making is, well, embarrassing.

      And you’ve created an equivocation fallacy in your premise. At no time in all of my essaying on this have we been discussing foreign policy. At least I haven’t. The connective tissue in any of this argument between my views on foreign policy and my views n counter-terror capabilities and the value and risks of such is, by all examination, non-existent. I would take, if not an ax, then a good-sized Louisville slugger to American foreign policy since WWII if permitted. So you’ve stretched what I am discussing to what I am, not, in fact, discussing at all.

      And frankly, the argument over this particular data-pile in that particular Utah location is, truly rooted not in weird, idiosyncratic things, but in technical realities, or it will be if anyone bothers to understand the actual substance of the issue. On the other hand, the larger issue of privacy and civil liberties being in conflict with national security issues — and how we systemically deal with that reality — is more fundamental. But the place to address that is at the point of secrecy and the FISA process. Those seeking to roll back some of the government overreach in the wars on terror and drugs have, I fear, picked the wrong target when they go headless chicken on this particular NSA program. And picking the right battle is elemental to winning now and then.

  • Here’s something I don’t understand. Why is so much of the argument dependent on scale? I understand the brave new world argument – that the sheer volume of capability makes the potential for abuse more widespread. But there also seeks to be a bit of a be afraid of the bogeyman cautionary tale in there. Society has always had to contend with the hazy unknowns of tomorrow — the digital age didn’t invent that.

    Likewise, that there may be computer infrastructure that I can’t specifically name does not mean I lack the capacity to imagine it. Nor does it mean that new technologies negate all which has come before.

    In other words, obsolete technology does equate to obsolete principles. In fact, it is arrogant to assert this at all, not to mention a huge waste of time.

    • “In other words, obsolete technology does equate to obsolete principles.” Yes exactly, the fact that the program in question is large doesn’t change the legal questions involved.

      As I see it, the “scale” argument’s problem is that it confuses the legal questions (is this legal?) with the policy question of should we do this? The legal question is quite settled, that is it is not a violation of the Fourth Amendment to get information on numbers dialed to and from phones from a third party, that is a phone company.

      For those of you keeping score at home the relevant case in Smith v. Maryland from 1979 and as the political science guys at The Monkey Cage put it (sorry about the big quote but this keeps coming up):

      “Nor does it seem likely that the program, at least as publicly described (e.g. in the court order, see here), violates the Fourth Amendment. This seems odd given that amendment’s ban on “unreasonable” search and seizure procedures. But as it happens the Supreme Court ruled in Smith v. Maryland back in 1979 – in a majority opinion that brought together justices as disparate as Harry Blackmun and William Rehnquist – that the kinds of records tracked in the present case are not subject to the 4th amendment…Their reasoning was that you have “no reasonable expectation of privacy” when it comes to the numbers you dial, since you know that the phone company keeps track of such information. In any case, the majority held, “even if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not one that society is prepared to recognize as reasonable. This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.””

      A conversation about whether the whole metadata program is effective or a good idea or worth it is a conversation we should have. But if you are going to stand up and start waving the banner of “The Constitution” in this particular matter you need to told to sit down immediately. The program the Guardian described is legit and the question of it’s scale is pretty much irrelevant to it’s legal status.

      To draw a parallel from Mr. Shirky’s own country I could make a number of arguments about how many policies in Northern Ireland in the 70’s and 80’s were counter productive, foolish, and morally troubling. Policies like the use of the SAS, interment, secret tribunals etc. But as I understand it, these policies where not illegal under the law at the the time. For me to argue so simply confuses the issue, even if those policies were also enacted at a vast scale.

      • In my defense, I was typing on a stupid little phone while sitting in the passenger seat of a car careening through the mountains. I forgot the NOT.

        I was trying to say while scale and cutting edge technology might have social or cultural implications, legal principles exist apart from that. I think it is ridiculous to try to dismiss the arguments laid forth here based on technocratic grounds.

        • To borrow from the remarkably prescient and utile Philip Agre piece I recommended earlier, and to echo the remarks about legal principles and technocratic grounds being conflated or played against one another, consider this:
          “The point, rather, is that capture is impossible; to the contrary, numerous impressive examples already exist. The point, rather, is that capture is never purely technical but always sociotechnical in nature. If a capture system ‘works’ [PRISM, Echelon, Boundless Informant, etc.] then what is working is a larger sociopolitical structure, not just a technical system. And if the capture process is guided by some notion of the ‘discovery’ of a preexisting grammar [entitities in the threat matrix, etc.], then this notion and its functioning should be understood in political terms as an ideology.”

          So back to this, all: What is the ideology expressed, or ceaselessly pursued, machinically, technocratically, militarily by this ‘capture process’ and has it been rigorously articulated: legally (in defense of liberties, and due process) and philosophically (how we tarry with privacy, secrecy, transparency, oversight, accountability, risk, and collective responsibility). Make no mistake. As the pendulum swings, to borrow Mr. Simon’s words, advance articulation and sufficient rigor at outlining the so-called ideological contours of our capture programs is necessary for a democratic society.

        • Oh yes, I strangely enough read your sentence in my head with the “not” being in there, and didn’t notice it wasn’t there. And I would agree with you about the difference between cultural implications that technology brings and the legal principles involved.

  • A very commendable discussion here, thanks to both of you.

    David, there is one thing that strikes me hasn’t been brought up. In your Baltimore Police example, the police always had to “play be the rules” because their ultimate goal was to gather evidence that could be brought into a courtroom, survive a defense challenge and a judge’s scrutiny, and be used to make a conviction. Because of that, there were things they might have done that they could not do and would not do, since it would put the ultimate goal in jeopardy.

    The NSA is under no such constraint. Nothing they do is ever designed to go into a courtroom and be reviewed by a judge. Thus, unconstrained, there is a very distinct possibility of what I will politely term “over-reach.” The same was true with the FBI surveillance of the Civil Rights Movement and the Vietnam Antiwar Movement, which is why they were able to commit the acts they did that I outlined in my post yesterday, with impunity. They weren’t looking to create evidence for a trial, they were looking to control people through fear.

    THAT is the problem with this situation, and it is one you still have not addressed. I’m sorry, I truly wish it was otherwise as someone who loves this country, but the 50 years of the history of the National Security Apparatus I am personally acquainted with does not leave me the generosity to give them the benefit of the doubt. The great grey “They” have consistently used the tools they were given for ends that none of us agree with.

    • And yet I have addressed it and keep doing so. Over and over….

      We all know the history of government overreach. Refer to it now: The FISA court exists because of the Church Commission, which came into being because of the Nixonian excesses and those of prior administrations. It used to be that there was zero legal oversight of all of this mess. Get it? We start from a baseline of this: If they want to do, they don’t have to ask anyone.

      Now, we have the FISA court. Too secret, too shielded from independent oversight, too protected by a complete cloak of national security exception. But it is an improvement on what came before. And so now, NSA and CIA actions are actually given a juidicial review. And then the intelligence committees in Congress are briefed. Is it enough? Is it sufficient to prevent abuses? No. But it is a process by which we attempt to establish judicial approval and review for our secret national security programs.

      Now then:

      What do we want to argue about here? Whether that Utah data-pile can be used to good societal purpose, or misused against American citizens. Quickly, the obvious answer is both. Do we want to tell law enforcement they can’t use an asset because it can be both used legally and abused illegally? Okay, but how is that different from any law enforcement asset right down to 9mm handguns, interrogation rooms, informants, etc. That’s a precarious real-world place to make the stand for privacy and civil liberties, especially given the stakes.

      Or do you want to use this moment to try to introduce systemic reform — and some more necessary sunlight — into the FISA legal process? To open that up and try to get some consistent, independent review into the process? That’s my argument. This data pile, I’m not so worried about it. If the feds want to come for your phone records and mess with you, they’ve had that in their pocket for thirty years of legal precedent. The secrecy behind the entire systemic dynamic. Yes, that’s the critical point at which to address the issue of abuses.

  • This is the way debates and conversations are supposed to be had. Goddamn, it makes me emotional to think that this level of exchange is the very heart of what is necessary to have our republic. The not having it, or the having it in the form of the very thin gruel that passes for it in our public square has always been disheartening. And destructive to our country.

    You want National Security? Then let us start by having this level of debate in our public square – by which I mean the Senate, and the House, and then perhaps that elusive debate that Pres.Obama says he wants to have (while precluding any of the predicates necessary for the debate to happen – thus another muted, or worse empty invitation). And then have it again at a different level at the local levels. And then again at community levels.
    Have this sort of conversation be how we conduct ourselves in our body politic and it will create a nation so strong that it wont need millions of guns to protect us from shadows that are the projection of our fears : real and imagined.

    It is said the US Senate is the “greatest deliberative body” in the world. An assertion I have always scoffed at. I nominate this board now as a contender for the the title.

    (And I am not unaware of how low the bar must be that this is more true than simple rhetorical flourish. Why is our “best news source” a comedy show, and one of the better dialogs remanded to a blog board, as good as it is)

    Hey Ho D.Simon! And a profound thanks for the time and all you are doing.

    And… also to Mr.Shirkly.
    Let us continue the conversation…


    A ps:
    It occurs to me that my enthusiasm might be taken as a statement that I think this or that argument was Right or Wrong, and “our guy really told him off”. Or some such thing…. I want to clarify my remarks to say it is the form in this case that I am applauding.
    The particulars of the argument have their own merit, but here we are given a clinic on How to engage a meaningful debate and conversation. Especially when there is meaningful disagreement being worked out.

    • Amen to that, Mr. Beaton.

      This is a great discussion, and one which has caused me many moments of doubt and adjustments to my position, as any good discussion should do.

      • Thanks to both you for contributing. I hope it’s clear what I am trying to do with the website, when I have time. Enjoy the weekend.

        • Before the congratulation pre-emptively ends discussion, I’d like to invite the luftmesnchen of the world to unite in discussing a provocative claim in your earlier post that I think is conspicuously absent from the conversations that have ensued. Maybe political philosophy is more scary than studying the Grecian Urn that is Glenn Greenwald’s adjectival deployment?

          “…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.”

          This “credible government” — one that I would like to ultimately have the charity to believe in (but not always trust) does not always have “its own” coherent, ethical, or ultimately, legal, set of national policies– upon which this credibility is ultimately founded upon and evaluated against. I feel as though “credible government,” as concept and action, seem to be ever receding in light of these revelations and the lack of legal transparency and restraint attending to them. Do we need luftmenschen to bring us back on track?

          • You’re right, credible government is, at best, an all-too-human ambition.

            And anyone that uses luftmenschen correctly, and adjectival deployment for word-choice can’t be all bad. If the world still spoke Yiddish, we’d all understand each other perfectly. On the other hand, we would all be that much more pissed off to know what we were all thinking.

  • As a homicide prosecutor in a large urban area, I routinely draft court orders for the exact information everyone is in a tizzy about. As stated in both of Mr. Simon’s posts, the law has been very clear on this point for quite a long time. It’s been standard practice in my unit for at least a decade. I suggest that the folks wringing their hands and displaying all the manufactured outrage I have seen over the past few days look up the words “third party provider”.

    The fact that the NSA uses this easily obtained information (that you simply don’t have a right to privacy in) to look for patterns that may uncover the identity of terrorists can’t really be a surprise to anyone that bothers to read the paper or watch the news now and then. Can it?

    In spite of my job (or maybe because of it) I am in no way advocating that our privacy rights should be watered down or that we should always trust the all knowing government. It just seems the current “revelation” is over dramatized, at best. All sizzle, no steak.

      • I understand your weariness.

        I think that much depends on what you consider “metadata.” There’s a conception of metadata that I’m seeing you and Mr. McCoy use that is comparatively very limited now. It might have legal standing, and you may, for all I know, be very familiar with the relevant research in semantics and logic. But this definition is not useful in even very simple private sector applications anymore; the kinds of metadata I can create on my own customers’ content is a long long way from IP, from and to, or call time and location and target. I’ve seen projects to characterize content with metadata, some of it funded by the NSA and the CIA, some through the universities and some through the private sector. This isn’t Rand Paul tinfoil hat stuff, this is InQTel.

        So I find it hard to believe the NSA isn’t trading on that generational difference in definition, and counting on the misinterpretation legally. That makes “metadata” a red flag for me, and it also makes what Snowden leaked alarming, because there are missing puzzle pieces and I know, from my own work, what they are.

        But there’s much more technical detail and argument behind that alarm than you can dump into a comment field, obviously.

        • Again, Dave, what are you speaking about? Internet communication or phone metadata?

          They are separate. It is not a “generational difference.” It’s that you consistently fail to distinguish between the two. They are separate government data-mining programs for internet and telephonic. Separate legal standards. Separate levels of privacy protection. Separate legal arguments.


          The initial post here was about telephonic metadata and the government’s right to that. PRISM is a separate issue, with separate problems and issues and legality. You can discuss both, but the commingling of issues leads you and those who try to follow you in this discussion into the high grass.

    • I don’t think it’s unreasonable to suggest that regardless of past exclusion of metadata from privacy protection (outsides of envelopes, etc.), that this either has always been something that should not be or that the exponential explosion in the amount of such metadata means that the scale should be recalibrated so it is not excluded. The statement that metadata has been less private than “real” data in the past does little to ameliorate those concerns.

    • The fact that the NSA uses this easily obtained information (that you simply don’t have a right to privacy in) to look for patterns that may uncover the identity of terrorists can’t really be a surprise to anyone that bothers to read the paper or watch the news now and then. Can it?

      It certainly wasn’t a surprise to me, or most of the geeks I know. But that raises another question. If this information is so obvious, why did the People In Charge wrap it under such a dense blanket of secrecy? Why do they accuse Mr Snowden of treason for revealing it?

      For me, the sheer scale of the captured data is troubling, coupled with the fact that I’m inclined to think that modern computer analysis can do more with this volume of data than Mr Simon does. But what really concerns me is the secrecy around it. Maybe it is a good idea to let the NSA collect this information, but I think we-the-people should know about it and know what controls are put on its use. And we should discuss, as we are here, about whether those controls successfully balance the needs of law enforcement and privacy.

      • Mr. McCoy, when you work a DNR or a Title III, are you legally bound to inform the public that you have DNRs or a wiretap up, and that if they make telephone calls, they might want to be aware that their metadata might be caught off cell towers, or in a numbers dump on various phones, or even in recorded conversations? Or is it the opposite — are you actually prohibited by law from revealing publicly the existence of any telephonic interception efforts to the public? Are you obliged to explain in public the methodologies you use to capture telephonic communication, either? Why don’t you do so?

        Can you explain the need for secrecy in your line of work?

        Can we infer anything from the secrecy you employ in your domestic surveillance of telephonic communication? Would that same secrecy be inherent in say, a program designed to capture telephonic communication for purposes of national security? Moreso, perhaps?

        I’ll throw this one to Mr. McCoy.

        We can argue about the risks to privacy and civil liberties and whether those risks are too great for the existence of this NSA program. That’s certainly legit, Mr. Fowler. That’s the crux of the good, solid argument here. But why they kept it under wraps is not really a serious question, is it? Pull out Occam’s razor and start slicing. Because it was illegal and evil is one answer, sure, but you have to go around this one first: Because it is far more effective if the people you are trying to catch in the telephonic web know less, and not more, about it.

        • I’m sorry, I haven’t made my point clearly enough. I understand the need for secrecy of particular calls for telephone logs. That is, if an investigator wants Mr Bad’s telephone logs, the fact that she’s asking for it shouldn’t be public.

          But should the fact that she’s allowed to access someone’s telephone logs be public? Is there a problem in publicly describing the procedure that she has to go through to get someone’s telephone logs?

          Although I’m no expert in this, I’m sure Mr McCoy doesn’t have to tell the world he’s put a wiretap on Mr Bad, but the world does know that Mr McCoy is able to do wiretaps should he need to, and knows what procedure he needs to go through in order to get a wiretap.

          (In addition seems to me there is a logical inconsistency between saying “everyone knows X so X is no big deal” and “it’s treason to reveal X”. Surely both of those can’t be true.)

          • Okay, to a point I agree with you. And the point is this: The FISA court and its process are so secret that when revelations like the one about this NSA data-pile come to light, they arrive without any discussion at all in this country and so the resulting freak-out is certain to be in excess of the actual information. I think the government needs to think about how to convey the general intent of their counter-terror programming and the general, but not specific, effect on privacy and civil liberties. And not reveal specific methodologies.

            Why not? Well, let’s take one example and assume — and I do — that the bad guys can and do assume that the U.S. is getting onto their cell calls, capturing them in some manner, and perhaps even tracking calls into the United States and then throughout the U.S. once the lines of communication suggest coconspirators. That would seem safe for them to assume.

            So let’s pretend that over in Central Asia, the bad guys say to each other. Listen, they might be able to track our mobile calls. So let’s dump phones and get new ones every week. Well, if every time the government had a hot phone number from overseas, they had to go to Verizon and say hey can you guys run this number through all your call data for the last few months — well, Verizon isn’t the NSA, and the time and bandwidth required to fulfill that request might not return the intelligence before the phone was dumped, and now the opportunity for real-time intercepts is lost.

            If I am a bad guy and I have read what Mr. Snowden and the Guardian has now revealed, I now know that NSA was actually maintaining its own, dedicated data base and that hey, maybe I need to be dumping phones every damn day. The counter-terror campaign just got harder because too much detail about methodology was made public. This NSA program had elements which might well have gone beyond the imagination of some echelons of some terror networks. Now, it is within their imagination. In that sense, it’s revelation is a tangible loss for counter-terrorism. That is not say that Mr. Snowden’s leak doesn’t have other positive benefits — notably the fact that a more honest, if too technically fulsome, discussion about counter-terror and the risk to civil liberties is now happening. But to pretend that revealing the program had no corresponding downside seems to me unjustified. How much damage was done? I don’t know. And you don’t. The bad guys know. And the intelligence community has a sense as well.

            • “But to pretend that revealing the program had no corresponding downside seems to me unjustified. ”

              I don’t imagine there is no downside here. It’s a trade-off between too much secrecy leading to loss of liberty and too much openness making things easy for the bad guys. My sense is at the moment we have too much secrecy and I suppose we’ll have to agree to disagree on that. (Indeed we have to, since this web page is no longer wide enough 😉

              • No, I agree with you. The FISA process absolutely needs to be opened up some. That’s why the initial reaction to the Verizon court order was so startling. People aren’t even engaged in what the stakes are, even in a general sense. If they are now, it is Mr. Snowden’s and Mr. Greenwald’s best legacy, certainly. Thanks, enjoy the weekend.

        • Although Mr. Simon summed it up nicely, I can give you a real world example. A few years ago I was prosecuting a gang homicide. The gang did not appreciate a citizen having the guts to testify against them, so they blew his leg off with an AK-47. We went up on the suspects phone and got dirty calls referencing the shooting. However, before we could nail down the identity of the shooters, the phones went completely silent. Later we found out an investigator had discussed what we were doing with his girlfriend, who was friends with a paralegal in a defense attorney’s office. Next thing we know, complete radio silence. We still don’t know who the shooters are. (or at least, we can’t prove it). This example is of a Wiretap NOT a routine request for phone records..not to beat a dead horse, but these things are vastly different.

          Also, as far as how “secret” all this meta data collection is….we are routinely working cases now where the criminals are informed enough to turn off their phones when committing the crimes so we can’t use them for location data later. These aren’t MENSA members…these are dope boys that watch TV. (honestly, they probably bought bootleg copies of the Wire and learned it there….thanks a lot D. Simon)

          Before anybody puts me in the jack booted thug camp- I value my privacy as much as anyone else. if it turns out the NSA somehow has that machine that Morgan Freeman made in the Batman movie and they can hear and record all of our conversations I will be joining the protest. But records from a third party provider don’t rise even close to that level. This controversy just seems like its a little over hyped to me, like people are looking for something to be morally outraged about.

          • I will be joining the protest if the NSA has the Morgan Freeman machine, too. At that point, all bets would be, indeed, off.

            As to where your suspects learned their trade, hey we learned it from the guys on the street in Baltimore. Common knowledge even in the middle echelons.

          • Yes, I think we’ll all be marching or worse if that turns out to be the case. But this seems more to me like an absurd, “slippery slope,” type of argument such as when conservatives say gay marriage will lead to people marrying farm animals.

            Not surprising in an age where 30% of citizens believe 9/11 was an “inside job!”

            • Genuinely, there isn’t even a critic of the NSA program — not the Guardian, not Rand Paul, not the congressional critics — who is claiming this. It’s insane. A homegrown conspiracy theory, manufactured without any evidence, right here on my little own blogsite. See how quick that happens?

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