Policy & Law Politics

We are shocked, shocked…

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

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

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

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

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

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

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

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

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

Because they aren’t listening to the calls.

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

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

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

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

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

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

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

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

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

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

Take a deep breath and think:

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

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

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

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

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

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

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

But this? Please. This is bullshit.

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

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

473 Comments

  • Mr. Simon – as a fan of your creative work, and as someone who presumes to agree with the political views you’ve made public at one time or another, I found this piece disappointing and frustrating. I’m going to give you the benefit of the doubt and assume that you haven’t really though this stuff through, and forbear from making any hasty conclusions about you getting old, losing your edge, suffering from the narcotizing effects of fame and financial success as an “It’s Not TV” big shot, etc…

    Although there are numerous points to object to in this piece, in the interest of time and sanity I’ll keep to what I see as the overarching one: the idea that these revelations represent something inevitable, rational, and appropriate. We can rationally disagree over the tone of some of the objections; I happen to not be bothered much by what you deride as “bloviating”. But this is not the inevitable result of some Faustian bargain “we” made in exchange for having our cell phones and Google searches. The data is indeed out there – but the idea that it should therefore be made available to the government, that they can access it in secret, free from anything but the most cursory oversight – an improvement on no oversight, yes, but a miniscule one, given the byzantine layers of secrecy surrounding the FISA court – is not only unconstitutional, but obviously morally wrong. If we agree that people have a right to privacy – and here again I must presume that we do agree, given your concession that this data mining is “problematic” – than this is not a “non-controversy.” It is a real, urgent problem.

    And the idea that your anecdotes about the Baltimore Police department serve as an effective counterexample seems too absurd to be taken seriously, so I won’t address it, other than to say that the differences in scope and levels of power and accountability are so great as to render any such comparison meaningless. And that monitoring pay phones vs. personal cell phones, call histories, browsing histories, etc. represent more of the same: no reasonable comparison.

    But back to my main point – you are objecting to this as if you’ve been asleep for the past few years, or at least somehow unexposed to any news. All of this is taking place in the context of a vast, unaccountable security state, a secret apparatus that has metastasized beyond any sane reckoning. We only know that it is huge, it is colossally, possibly ruinously expensive, that it renders quaint notions like “oversight” laughable, and that It Has Not Made Us Safe. Your argument assumes that the bargain you posit has been worth it – that though it might make us uncomfortable to think that the government listens to our phone calls, it has paid off in security. But there’s absolutely no proof that this is true. There is ample evidence, in fact, that it’s false, to use only the recent example of the Boston bombings, which you yourself cite – which were not prevented by all of this surveillance. Not only was there no bargain to begin with, at least not one in which the public was a willing participant, but it has not paid the dividends that you imply. To demand both privacy and security is not to ask to “have our cake and eat it to.” It’s to ask for democracy, plain and simple, at least if we take the Constitution seriously. Why is that fundamental realization eluding you?

    I know it must stick in your craw that this scoop was had by a “blogger” – but cool off, think about it, and then respond.

    • Well, Zach. Glad you like some of my emissions. But I have thought about this and I have written my thoughts in the original post and in response to many of the same concerns you raise. And well, we can’t win ’em all.

  • Interesting perspective here, but I don’t think your analogy applies. Phone records for a PUBLIC PHONE don’t seem the same to me as my personal email/phone/text/tweets. Also, as you mentioned the police suspected specific individuals of using CITY payphones. You also noted they had to have specific claims of criminal activity to get that court order. What are the specific claims of criminal activity that warrant collecting information on EVERY Verizon business customer? As Glenn clearly and eloquently stated, it is not that the government can intercept our information and phone records, but the scope with which they are doing it, the lack of oversight, and the complete veil of secrecy under which all of this security operates under.

    Should there be all this shock and outrage? Of course not, because anyone with half a brain and technical knowledge already knows that the government (and private corporations) are collecting every scrap of information they can get their hands on.

    I also vehemently disagree with your assertion that my expectation of privacy on a public, city-owned payphone is the same as communications I make on my own equipment in the privacy of my home or other private location. Much like people walking on public streets are fair game to photograph but if I go to someones house and sit in the street snapping photos of them in their house that is a totally different situation.

    We can agree, however, that much of the public and government is completely and utterly unaware as to any sort of technical issues regarding this subject. I’ve been warning people for years not to expect any privacy on facebook, twitter, their text messages, phone calls or anything else of the sort. But most people don’t know Tor, encryption, VPNs, etc so they’ll just continue leaking information all over the internet that is going to end up in a database somewhere. It doesn’t matter much to me whether that information is collected by the government or a corporation.

    Please take a week and do some research on modern data-mining; the sort that google, doubleclick, amazon, facebook etc are using. Quite simply, most of the american public simply can’t grasp the speed and abilities of modern technology and it’s clear you don’t either. Private companies are already doing this and everyone thinks it’s great. People are happy to continue posting incriminating information all over facebook and other internet sites.

    Do you deny that the government can already get a court order for telephone records (or emails, or websites you visited etc) from Verizon? If so, why do they need a ‘data stream’ of all phone records from Verizon business customers? Again, police suspected specific people of using specific pay phones to commit specific crimes in that Baltimore example you referenced. You can’t seriously suggest that is the same as what is going on here.

    What’s next? Should the government be able to use my video camera or microphone on a smartphone to record me? If they have probably cause, I think we could agree maybe that might be ok. However, to suggest they should be to record video or audio of every single cell phone user just ‘in case’ one of them might commit a crime is a scary thought. Data is data. If they can make the claim that they have a right to call records without probable cause, it’s not a big leap to think they’d do the same thing with any other piece of data you generate.

    • Interestingly, it’s harder to get a wiretap for a public phone. With a personal phone, you can of course establish the identity of the primary user and, together with investigative information about that individual, the value of a intercept is more easily presumed on a personal phone. More police work is required to convince a responsible judge that you need to monitor a phone that has a multitude of users, most of them innocent.

      • Even more difficult to acquire is a wiretap for a series of pay phones used by a mobster to avoid easier-to-obtain wiretaps. This isn’t a theoretical argument; in the Chris Petti case (more than 20 years ago) the feds acquired a conviction largely based on the then-novel concept of wiretapping one or more of a series of specificed (and a few unspecified) pay phones when and only when the phones were used by Mr. Petti, the mobster.

        The law — as interpreted by judges — is not static.

  • “Trust but verify” to borrow a phrase from the Great Communicator.

    It feels like we’re awfully long on “trust” and woefully short on “verify” at this point. I completely agree that law enforcement should have all the tools it needs to root out the bad actors. But until somebody throws back the curtain (even in a redacted, limited disclosure) to show us what tangible results more than a decade of Top Secret America has gotten us, it’s impossible to say whether any of these measures are as effective as we are told.

    So until then, the only things I know that have factually happened during that time are: (1) Richard Reid came apparently close to bringing down a passenger jet with his shoe bomb; (2) Umar Farouk Abdulmutallab came apparently close to bringing down another passenger jet with his underwear bomb; and (3) the Tsarnarev brothers killed 3 and maimed hundreds of others at the Boston Marathon. Which makes me feel that if the same circumstances that led to 9/11 were happening today, how confident would I be that the alphabet soup of intelligence agencies would be any more competent at connecting the dots now than they were when the “system was flashing red” in summer 2001?

    If we’re going to give the agencies a blank check and (relative) carte blanche to monitor electronic communications — even upon a reasonable suspicion or probable cause — I don’t think it’s too much to ask that the people footing the bill have the opportunity to know what they’re getting for their money.

    • Agree on greater transparency. In its absolute secrecy, the FISA process only fosters more distrust.

  • David, this is a surprising read.

    You seem to firmly believe that this activity is legal. I think this is debatable at best. Both the constitution and specific laws on surveillance of US citizens which have been neither repealed nor superseded make the legality of this data grab suspect.

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

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

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

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

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

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

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

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

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

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

    • You can debate its legality in your own personal vaccuum. But FISA and the Patriot Act are what they are, and that is really a court order, and as I pointed out, even before the post-911 relaxation in electronic interception, it was entirely possible to gather metadata from phones that were not directly linked to specific individual targets.

      As to your contention that knowing a call occurred and at a time and location is the legal or actual equivalent of monitoring and recording that phone call: It wasn’t so before 911 and it isn’t now. You may feel that it should be on some personal, moral level, but it just isn’t so. One is X, and the other is Y, practically and legally.

      Lastly, the scale of the monitoring is vastly different between the Baltimore case that I cite and the current metadata gathering by U.S. intelligence. But the actual legal standards and the balance between privacy rights and investigative need is exactly similar. Thousands of Baltimoreans used those cellphones legally, and they had as much expectation of privacy as any other telephonic communication under the law. Yet their calls were recorded, too, so that detectives might discover the vastly smaller number of people who were using the phones for criminality. And the greater concern about preserving the privacy of innocent parties did not reach a more critical deliberation until detectives sought to listen to calls.

      That the scope of the government’s efforts to gather data is vastly larger, but no less disproportional, is the point here. Either the legal principle holds or it doesn’t. And even before 911, that principle held. A DNR or a PEN register, or retroactive recovery of phone records, does not a wiretap make. And the standards for these things are legally and substantially different. You can wish to believe otherwise, but the history of electronic surveillance and American law stands against you.

      I think I’ve repeatedly framed the conversation in relation to anti-terrorism efforts and the need for accountability and greater transparency on the part of the FISA process. I do not agree with your conclusion that I am making any case that it is okay for the government to track its citizens. That would constitute a misuse of the metadata, and if the court order permits such use then it is indeed an overreach. I am saying this: It is okay for the government to maintain a data base that can be utilized when actual intelligence reveals the existence of specific suspects in a national security matter.

      If the data is used for something else, then I support a punitive response to that misuse and I would hope that such misuse would result in a reconsideration of the extreme secrey and lack of accountibility that surrounds the FISA process.

      I’ve said what I’ve said. For you to characterize it as something else seems to me a straw-man battle of your own construction.

  • But can the system work if it isn’t locked behind closed doors? If not, how much secrecy is required? Were the judicial orders in Baltimore public record while the investigation was ongoing? If the phone companies admit to providing this information, wouldn’t one refuse just to try to gain a competitive advantage? Data-mining may or may not be a problem, but in a completely closed system operating in a larger system where leaks are prosecuted aggressively, what hope is there that abuses of the kind you describe (and illustrate in your own work) can be brought to light? That’s where the tension of the story exists, a top secret operation that has no public review requires the public to trust, as Obama said, that the government won’t screw it up. So is it the data-mining alone that is causing the uproar or the near total secrecy that surrounds it?

    • You are on it, my man. This is the discussion we need to be having.

      I think the near total secrecy isn’t helping. It feeds the conspiracy-minded among as, as well as those more sensible folk who rightly argue that any government activity with so little oversight will eventually be corrupted by overreach and illegality. I agree with them entirely.

      But I want the feds to have that data. And I want them to keep it in their arsenal for purposes of national security.

      And when it is misused, that is the time to leap on them with both feet. Because it will be at that point that the FISA process is most likely to endure some actual measure of sunlight and reform.

      • So where do you come down if you have to choose? Is the program so valuable that even if (not a big stretch here) the government refuses to open the door just a crack for more public/press accountability that you think it is worth continuing? Would it be justifiable if the records were opened after a year? 10 years? 25 years? And do you believe that this type of data-mining collection needs to exist forevermore? Long after this threat passes, does this become a way of life? We just accept that this data (or whatever replaces it) will always be collected?

        • Can you describe the world to me three years from now? Five years from now? A decade?

          Five years from now, will there be federal prosecutions of Americans on domestic charges that have their origins or were in any way made manifest by the use of this data, collected by the FISA court? If so, then my answer is different than if, say, several random efforts to so misuse the data were struck down by federal courts. Allow that the future is still the future. But pretending that the data doesn’t exist, or that it has no meaningful purpose in a world in which counter-terror is s societal good? That’s not an honest answer, by any means.

        • I’m surprised to hear you ask when the records would become public. By the terms of the court order published by Mr. Greenwald, the (then latest) Verizon wireline order was schedule to become public after 25 years from the application date.

          That sounded like a long time to me. Under previous call-monitoring federal laws, a disclosure to the affected party had to be made with 1 year.

          • Glad you brought that up. Twenty-five years is ridiculous.

            I understand that this is a national security case, but if they’re going to stamp stuff classified for a quarter century, all the more argument for a vetted civilian review board sitting consistently within that court, empowered to bring in the DOJ inspector general or even a Congressional committee at any sign of going beyond the law or using national security as a cover for other untoward purposes. I have deep doubts about how an entirely secret court can be held accountable and I keep saying so.

  • I thought the NSA was specifically tasked with conducting foreign espionage and that they were expressly prohibited from conducting domestic spying or intelligence gathering.

    • Indeed the post-911 legislation has muddied that, too, in seeking to coordinate intelligence gathering among U.S. agencies. And I would agree that while it is understood that the FBI, with domestic counterintelligence and counter-terrorism authority, doesn’t have the technological ability to crunch raw communications data as they do at Ft. Meade, the commingling of the NSA, CIA and FBI roles is problematic. Or will be at some point, soon enough.

      • Senator Church turns in his grave. But there was much criticism of the lack of communication between agencies. That’s what the creation of the DNI office was supposed to change.

        • Church is unmoved in his grave. He never proposed solutions, other than “NO!” His work was largely limited to exposing what he didn’t like in federal programs: in other words, the ones that didn’t involve transfer payments.

  • Fuck. Off.
    Wednesday wass Constitution Day in Denmark. One of the articles in the Danish constitution is known as Chapter 8, paragraph 72, which reads “The home is inviolable. House searches, seizures, the search of letters or other papers and breaches of the postal, telegraphic, and telephonic secrecy may, where no law authorizes a particular exception, only occur after a judicial warrant.” The Danish equivalent of the Supreme Court has extended this right to text messages and internet activities in recent years. To wit, this could not even happen in Copenhagen – you can’t be wiretapped or have your records turned over to the gov’t until AFTER a judge has granted a warrant FOR EACH ITEM requested. Note also that Danes are not merely given “privacy.” They are granted actual “secrecy.”

    • The next time someone flies a couple planes into the Mermaid, or blows up the Copenhagen Marathon, we can remark on the Danish capacity for personal privacy above all. It seems to me that their geopolitical reality might be a bit different than ours at this point in history.

      That said, I do not require you to fuck. off.

      But if you want to discuss this further, see if you can comport yourself as if it is an academic argument, which, in fact, it is. We are here because the issue is worthy or argument among adults. Or at least, I am.

      • David: It’s 2013. Dismissive knee-jerk “9/11 Changed Everything” rhetoric doesn’t really cut it any more.

        • I dunno. Things changed for some legless people from Boston not more than a couple months ago. And be honest enough to admit that you don’t know how many acts of terrorism were disrupted by the government’s maintenance of that metadata. You have no clue, as I have no clue. We only know that in practical terms, such data can certainly be of use to proactive attempts to prevent such terror.

          And as the post pointed out, the legal threshold for the gathering of metadata — even on devices not specifically linked to suspects — has its origins well before 911. That’s my problem with this non-scandal. The government has the data by statue, and to this point, they have not misused the data. When they do, that is a scandal of the highest order. But until then, a little less hyperbole. There is plenty to criticize in our prosecutions of the war on drugs and the war on terror, but this, not so much. Would that people got as exercised about the U.S. executive branch sending a missile up the ass of an American citizen without benefit of even an absentia court hearing as we do with the notion that the government might be holding on to a record of who called whom.

      • So the fact that 12 years ago some terrorists flew some planes into buildings has become the permanent “get out of jail” free card for creating a police state and violating our civil liberties until the end of time? How do we “win” a “war on terror?” The answer is, you don’t. You just create a panopticon police state that our ancestors would have said only the Soviets or Nazi Germany would have been capable of doing.

        I’ll pass.

        • Yes, that World Trade Center business is old hat. No need for any telephonic intercepts between, say, Chechnya and Boston. How could that nonsense matter. And I’m sure we can stop sending people through those nasty body scanners, too. The world is more in love with Americans and our foreign policy than they were a dozen years ago. I’m sure we can rely on people to generally disarm themselves and behave when they board any airliner at this point.

          WTF?

          There is plenty of overreach in our war on terror and in the war on drugs, both. Our civil liberties are being affronted. But here, with this metadata, and its uses thus far, no, not so much. Sorry. When such data is misused, then we have a scandal. And at that point the remedy will not be to discard the data from the national security equation, but to punish the misuse and ensure greater oversight and transparency in the FISA process.

          • I think you both fail to understand just what it is metadata reveals and that they are not simply gathering the metadata of calls overseas. ALL domestic calls from a number (and probably) all carriers are included in this dragnet.

            In addition, your gmail email messages, your facebook messages (public or private), your hotmail email, your yahoo email, and so forth are *also* being included in this, on demand, without a warrant.

            I’ll forgive you for being non-technical, being an old reporter. I work in security at a major silicon valley web company (and one that isn’t part of these agreements) and I’m appalled and terrified at the scope of this, even though I and others in the security IT industry have suspected for years since the first whistleblower spoke about secret rooms within AT&T under San Francisco. You’re dismissing the true scope of this, giving the government a free pass because “terrorism!” and generally happily handing away your civil rights with absolutely no civilian oversight and little chance of there ever being any.

            We’re just supposed to take the government’s word that it is all necessary and top people are doing the right things. Of course, these same people created secret prisons overseas to torture terror suspects and have locked up quite a few probably innocent folks permanently in Gitmo so you’ll have to pardon my lack of willingness to cut them some slack on my civil rights.

            • I understand what metadata is. I understand what they are gathering.

              I do have greater concerns about the collection of internet data because the content, unlike with telephonic conversations, is self-evident upon capture. But the fact remains that U.S. law does not recognize internet data as having the same measure of privacy as telephonic communication. That has been true throughout the existence of the internet. That is just so. If we want to change it, then a legal effort needs to proceed. But right now, what is posted on the internet lacks a measure of privacy that exists for telephonic communication and everyone needs to know that.

              Since you are so forgiving of my dinosaur, old-guard status, I will forgive you for resorting to weak ad hominem assessments of who you are debating, and the arrogance of thinking that your own particular history entitles your facts to be any more correct. Again, Jesus Christ can still be the son of god and fail algebra, and Al Capone can write a damn fine civics text. Only the algebra exam and the civics text matter.

              I cited my history as as police reporter because it brings forth a case that is a direct microcosm of the issue in the present controversy. The case was important to the post and to this discussion, not the fact that the Baltimore Sun paid me $32,000 to read those affidavits in 1987. Citing my position as it explains my awareness of the case isn’t ad hominem; it’s just basic sourcing.

              See if you can make your points without characterizing your opponent. We are both smart fellows. The ideas conveyed will be enough, I think.

            • Are you and I reading the same words? I don’t see anyone here handing over any kinds of rights. The discussion here is about two things, as I see it.

              (1) The ginned up story that there is a dragnet and that the government gives a hoot about how many times I call my boyfriend. That the government collects data on us is nothing new. The technology has rapidly expanded, so scale is the difference.

              (2) The actual issues, which are about how this data can be used. Transparency and oversight. These are the real problems that need to be addressed. Unfortunately, the hysteria about OMG THE GOVERNMENT WANTS TO BE ALL UP IN MY BUSINESS and OMG OBAMA REALLY IS PLOTTING TO TAKE OVER THE WORLD and LET’S IMPEACH THIS RADICAL PRESIDENT overtakes any real, substantive discussion. And you are just feeding the beast by reading words that just aren’t here.

          • David, you are the one with nothing to back up your claim. You say there have been no misuses of the metadata so far – Really? How can you know? We didn’t even know it was being collected until a few days ago. From what we understand now the government has a ten year record of the whereabouts and calling patterns of everyone in the US with a cell phone sitting on servers somewhere, and you are willing to say with certainty it’s never been misused? Who would know if it was?

            If this was such a necessary step, then why the secrecy? Terrorists and foreign agents are generally canny enough to know that they might be watched, admitting this kind of program does little to inform them. This was clearly hidden from the public for political reasons, and that has caused a breach in the trust of the public that I don’t believe is repairable.

            • Read my words with care. I said there is no evidence of misuse, but that yes, such misuse may well be occurring. And I have pointed to the lack of oversight in the FISA process repeatedly as being the key reform that is required here.

              But just as I can’t prove a negative, neither can you cite the actual misuse of the data. And given that it was a legal court order that gave the data to the government, claims of a scandal are hyperbolic and, in fact, destructive to any legitimate critique of the lack of FISA oversight or external review.

      • Really, 12 years later, flying planes into the WTC is as an excuse?
        Not sure you noticed, but we survived the Cold War. Some thousands of thermonuclear bombs targeting the entire country. But because some dipsh#t fanatic was able ONCE to commit an unspeakable act we are to give up all expectations of privacy?
        This isn’t about a local police unit targeting known criminals, this is about an infrastructure that allows the immediate gratification of the worst impulses of tyranny. The very fact that Barrack Obama, of all people (ie, his stance while in the Senate), should have his worldview changed once the levers of power are in his hand should be all the warning you require. The entire program is incredibly dangerous. Your voice is important, Mr. Simon, think through the consequences of your positions.

        • Actually, we gave up far more civil rights in the Cold War than we have so far relinquished in this era. History doesn’t help you there.

          That said, I am greatly offended by some of the excesses of the war on terror and the drug war both. I said so in the original essay.

          But I am not offended by this.

  • I ascribe the vastness of the data being amassed to our unwillingness to describe the enemy truthfully. At the airports lines stretch out as the TSA searches 85 year old Minnesotan grandmothers in wheelchairs and frisk 4 year old girls. They go through this charade because any kind of profiling is forbidden. The NSA and its cohorts have to search everyone’s data for the same reason. They do not want to appear to be profiling Muslims. If all this time, money and human capital was concentrated like a laser on the group that actually contains almost all terrorists, jihadist Islamists, the threat would soon evaporate as would the need to snoop on 200 million innocent Americans. I am sure in your Baltimore police example the officers watching the pay phones to make sure only “drug dealers” were recorded were engaged in profiling.

    • So tell me: what does a jihadist Islamist look like, that we can spot him infallibly?

      You can’t, because such a description does not exist. If we start waving Ann Coulter through the checkpoint, the bad guys will simply recruit scrawny blond women for the courier jobs. And yes, there are blond & blue eyed moslems.

  • A ‘breath of fresh’ air post, to be sure. And I agree that most who object to what’s been revealed about collecting metadata on all calls probably don’t understand what metadata is, or what difference in the speed of an investigation it can make, or how little the endless chatter of our chattering species really matters, compared to how much a tiny portion of it might matter.

    But even more remarkable to me is this deeper contradiction among Americans: we sit in our seats and root for the spies, the FBI agents, or the cops in “The Wire” to get the court approvals they desperately need to catch those criminals — we can hardly stand the suspense! And then, after the show is over, we loudly decry the government for trying to do its job, and forget all about our previous feeling.

    And that is the point: it can’t be about ‘feeling’ — it has to be about finding a way to balance the concerns at stake. I think Obama had it right — we demand 100% convenience and privacy, except when those things might make us less safe, and then we demand to know why someone wasn’t caught sooner. And finally, it seems pretty clear to me that anyone who uses a phone, or the e-mail, with the expectation that these forms of communication are absolutely secure and private needs to update their awareness of what it means to live in a tech-rich and connected society.

    That said, I do wonder at the reported statistic that the FISA court seems to approve almost every request — surely that hasn’t been the usual practice for ordinary civilian courts’ authorization of police requests for information on calls, or wiretaps …

    • FISA needs a civilian review panel, carefully vetted to maintain national security. I don’t trust the current process, I agree.

  • David:

    Huge fan of your work. The Wire is the greatest TV show in history. Homocide was a hellova book. But methinks you put too much trust in government and law enforcement. Here are some numbers to consider:

    Number of FISA surveillance requests made from 1979 to 2012: 33,949
    Number of FISA surveillance requests rejected by the courts: 11

    source: http://epic.org/privacy/wiretap/stats/fisa_stats.html

    Number of “sneak and peek” searches conducted under the Patriot Act (2006 to 2009): 1,618
    Number of “sneak and peek” searches related to terrorism cases: 15

    source: http://nymag.com/news/9-11/10th-anniversary/patriot-act/

    Number of times FBI issued National Security Letters under the Patriot Act without legal grounds to do so (2003 to 2007): approximately 3,000

    source: http://www.washingtonpost.com/wp-dyn/content/article/2007/03/20/AR2007032000921.html

    Organizations invested for possible terrorist activity by the FBI between 2001 and 2005: PETA, Greenpeace, the Thomas Merton Center, The Catholic Worker.

    source: http://abcnews.go.com/News/Blotter/fbi-spied-peta-greenpeace-anti-war-activists/story?id=11682844#.UbJPe0C858E

    While you’re at it, Google “Brandon Mayfield” (to see what happens when FBI misidentifies a ‘terrorist’) and “Thomas Andrews Drake” (how the NSA treats its critics).

    You said there’s no evidence our national security agencies abused the powers granted under them by the Patriot Act after 9/11. I think these examples suggest otherwise. And mostly they relate to agencies that are much more transparent, with much more oversight, than the NSA. Why do you trust them so much to treat this information the right way, when there’s clearly no meaningful oversight and no incentive for them to do so?

    The media is not over reacting. It is reacting in exactly the right way — asking questions, demanding answers, attempting to hold those in power accountable. What’s your objection to that?

    dt

    • I want them to have the data. I want them to use it.

      I do not want the data misused. I want sufficient independent oversight of the FISA process to stop such misuse and punish such misuse when it happens.

      Can I be more explicit?

  • So, if I’m getting this right, from the article and your comments (especially this one: “in fairness, having the FISA courts rulings so hidden from citizen review, makes even the discovery of such misuse problematic,” you see this as very problematic, and worth reporting.

    But not really, all you ingorant people freaking out.

    But yes, it’s problamatic.

    Am I getting you right?

    • Is nuance so elusive? Apparently.

      There is no scandal in the data acquisition. What the Guardian has revealed and claimed as indiscriminate is legit, despite the scope. What should be debated is the lack of oversight of the FISA court and its activity. And that is not the focus of the debate.

      I don’t care that the FISA-court has allowed the feds to establish a data base of all American international phone activity. I would expect such given the geopolitical realities of global terror. I worry that in the event of the misuse of that data, we will not learn of the wrongdoing because the civilian oversight of the FISA court is too minimal. The cure for that isn’t to pretend that the relevant data doesn’t exist. The cure is to ensure accountability and greater transparency for the process, while still ensuring that national security secrets offered to the court remain secrets. That is the real issue.

      That everyone is being spied on, or that there is, de facto, a violation of our rights through the mass maintenance of metadata, is in my opinion, not a serious debate. It is a pretend scandal. The real scandal — that of misuse of the data — has yet to occur. But it will if we don’t liberalize the secrecy of the FISA court to some meaningful point.

      If that is hard to grasp, I apologize. But not a word of it is contradictory.

      • I had understood that its not just international calls but rather all calls, international and domestic, handled by the relevant Verizon sub.

      • “That everyone is being spied on, or that there is, de facto, a violation of our rights through the mass maintenance of metadata, is in my opinion, not a serious debate. It is a pretend scandal.”

        That is just unfair. Greenwald reported on a program that NOBODY knew existed. That is, as you’ve said, worth reporting. Implying that Greenwald’s (and others) only purpose for that is to say that *it alone* is the problem is a strawman. He doesn’t say that, and his long history with these issues doesn’t begin to imply it. If you happen to disagree with it alone being a problem, fine, but you’ve gone much farther than that in this article and in your comments.

        “The real scandal — that of misuse of the data — has yet to occur.”

        Honestly just “Wow.” You actually just stated that as fact? (And I don’t get to state the opposite as fact, but I sure as fuck get to acknowledge the world we live in, which you with that statement don’t at all. You act as if we, as citizens, shouldn’t, because of history, be suspicious of government.)

        • The misuse of the data has yet to be proven. When it occurs — and I believe that any law enforcement asset will at some point be misused by someone, somewhere — then the issue is how much sanction and punishment can be brought to bear on the violators, and how quickly and firmly the government ends the misuse. And for that, as I’ve said repeatedly, we need a FISA-process that has more independent review and oversight.

          I have no problem with Mr. Greenwald’s reporting. I did not criticize his use of the leaked document. I think the secrecy of the FISA court is too overwhelming and that it encourages more conspiracy-theorizing than it would if Americans were made to understand the basic perameters of what the government is monitoring and what the government is not monitoring. The reporting was right fine.

          But when Mr. Greenwald then goes on to offer his unsupported opinions on what the court order represents in terms of indiscriminate government overreach — at that point, I call bullshit. Because it was bullshit. It isn’t that the data exists or that the data base exists. That can’t be the threshold for a realistic debate about how to proceed, given the geopolitical realities. No, the debate is how will the data be used and what is the oversight. And Mr. Greenwald and others haven’t pursued that meaningful discussion, they’ve gone for the hyperbole.

          • “And Mr. Greenwald and others haven’t pursued that meaningful discussion, they’ve gone for the hyperbole.”

            That is just false. And you have to know that. Greenwald has probably reported and written about FISA and secrecy, which you say is the real problem, more than anyone on the planet (barring maybe Marcy Wheeler). For you to pretend that this reporting is not a furthering of that discussion is very hard to understand.

            And this is the quote you chose from Greenwald: “What this court order does that makes it so striking is that it’s not directed at any individual…it’s collecting the phone records of every single customer of Verizon business and finding out every single call they’ve made…it’s indiscriminate and it’s sweeping.”

            Your Baltimore story does not refute any fact in that quote. And how exactly is it “unsupported opinion”? It is in fact “indiscriminate and sweeping.” That’s simply a fair description.

            • I am not attacking Mr. Greenwald’s overall bona fides. I am criticizing his characterization of what the leaked court order represents. His claims of indiscriminate data-gathering were unsupported and irresponsible. He has manufactured more of a scandal than that document suggests. That is all.

          • I want to add that something that really irks about this piece is that, so very soon after the reporting, you really just seem to be bitching that they didn’t *say it all just the way you would have liked*. You agree that it should be reported, and that it will further the discussion on important issues – but, oh, those meanies and their freaking out! If only they wer cool like you!

            Honestly, that’s how this comes across.

            • I’m sorry. The reporting on the leaked court order is relevant, given that so little of what FISA does is accessible to the public. The ignorant commentary about what a grand affront to civil liberties is represented by that court order was sloppy, unsupported and worthy of criticism. I criticized that. Good journalism isn’t merely the transmission of facts, it is the accurate context in which those facts are delivered.

              Mr. Greenwald has relevant facts about the mysteries of the secret FISA process. That is worthy. His analysis of what it actually represents in the context in terms of global terrorism and practical policing was weak, unsupported and exaggerated. Both things are true. Neither is contradictory. And if saying so makes me displeasing to your ear, well…

              If even this much nuance irks you, then this website is probably not the place to hang. Sorry.

        • Nobody knew of this? I’ve been reading about the program in the Wall Street Journal since 2008. It is hard to imagine that I was the only reader of those articles. I even congratulated at least one of the reporters on the work; they just didn’t claim that the work was illegal.

          Maybe you meant to say that “nobody who doesn’t pay attention to the news” knew nothing of this program?

    • Yikes, where to even begin.
      Yes, it’s problematic that the rulings were hidden.
      No, it’s not problematic that those rulings happened the way they happen.

      There’s no back and forth in David’s argument, and no hypocrisy. He points out exactly what is and what isn’t problematic.

  • Disappointing. Just another liberal making excuses for our half-black president. Somehow, I think your tune would be different if the president was Bush (or any other republican). What a tool. Privacy? That’s only an issue with a Republican president.

    That said, The Wire was awesome.

    • When you claim that it is my political inclination that leads me to my opinion here, you embarrass yourself. Others here are calling me a crypto-fascist for defending the intelligence community and its efforts to maintain a data stream. When you reference the president’s race as being meaningful to any point you think you are making, you shame yourself.

      You’re a racist. And an oblivious one to behave so in a public forum.

      • That’s beautiful. I post a response to your name calling (as Random Electron) and I get a message that it is a duplicate post and I’ve said that already. Nice. So you call me a racist and I cannot respond. Crypto-fascist is a compliment. Stalinist is more accurate.

        • But sir, you are a racist. Your earlier “half-black” aside regarding Mr. Obama is sui generis.

        • And, just to put a relevant point on this: the program was started during the previous administration, and at this point, there is no evidence that it was expanded during this administration (like so much else that the current President, as a candidate, railed against) Nobody’s race is relevant to this discussion, so raising race — or even the President — is a sign of being a racialist, if not merely a racist.

  • The problem with this post is its overbearin tone, which seems far more self-aggrandizing then anything Glenn Greenwald or the _Guardian_ have displayed. Let us put aside the technical issues that make these surveillance programs perchance different from those to which you, Mr. Simon, are analogizing given that others have mentioned these matters above. Let us also put aside the “When I was a reporter…so I am an expert on all surveillance matters b/c I know something about wiretapping in Baltimore”-sentiment that animates the post, even if it is hard to stomach. (You act as if anecdotal and personal experience is some profoundly superior basis of drawing conclusions and inferences; in your case, moreover, in your capacity as a media personality you are constantly alluding to your hard scrabble days as a reporter in Baltimore–even as you are constantly being praised for it as well; therefore, additional mention and harping on it and trotting it out as you do here seems rather unwarranted; it is also distasteful in much the same way that the self-congratulatory culture of political punditocracy generally is, which is ironic given that you likely decry that culture when you are in one of your “liberal” moments).

    Let us instead focus on the frankly bizarre hostility toward _The Guardian_ and Glenn Greenwald that frames the whole argument and seeming impetus for your post. To say the least, this is a curious way of suggesting we should be reacting to what is clearly a profoundly important story: “hey everyone be non-plussed!” It is hard to miss that what is actually going on is more like that you are appropriating the story to prove that David Simon = independent thinker. Big story about how the Obama admin has acted way more like the Bush admin than most people are aware of and on the basis of **very significant** and previously unavailable new documents. How to react like a contrarian? Trot out a quasi-technocratic “I know the facts of how this stuff works” response, sprinkle in some reference to how the knee-jerk, unthinking ‘libertarian’ Obama haters react and demonstrate your bona fides as someone who thinks for himself. Just when you thought he was a “liberal hero” b/c he talks about how the drug war is a war on the poor or racially marginalized David Simon will reveal that he is not some reactionary constitutional rights zealot (or maybe a socialist or some other evil bogeyman). Please.

    The main part of the story–which is developing rapidly everyday–that you seem to have missed is that Glenn Greenwald obtained a profoundly important document, the initial court order, from a source in this capacity as a journalist (as well as blogger, editorial columnist, and etc.). This document further corroborated the existence of surveillance initiatives of grand scope that both Greenwald and various others have been trying to raise consciousness about *for years*. Of course, within the large-scale media those past efforts have gone largely unnoticed precisely because it is so easy to dismiss them by imposing some implicitly ridiculous burden of proof when the desire is to smother a story. What happened here was that Greenwald x number of years later got some irrefutable proof to meet that burden and thereby to play by the rules of the game that have heretofore allowed this story to go unnoticed. And he and _The Guardian_ have forced the hand of the larger intellectual and political culture. This is profoundly significant for many reasons. Moreover, following the initial revelation, in the days since there have been several other reveals from Greenwald, _the Guardian_, and other (PRISM, the non-denying denial by the likes of Apple, Google, etc., the other NSA documents making the rounds; Obama’s cyber-targets list; etc.). These revelations are another chapter in an ongoing story of how the Obama administration has largely consolidated the major policy initiatives of the Bush years. The very things that had people up in arms in those years, in other words, have largely gone uncommented on under Obama. Even more than all this, however, near instantaneously the story morphed from being about the surveillance scandal into also being another chapter in the Obama administration’s ominous pursuit of “whistle blowers” and journalists it doesn’t like. (Of course, this is is a novel achievement of the Obama admin more than it is a continuation of Bush era policies.)

    In light of all of the above, do you honestly imagine that your post’s shrill tone is warranted in such a context? Why not pen ‘some thoughts’ expressing your reservations about Bradley Manning, wikileaks, or Thomas Drake now as well.
    If you cannot acknowledge, first and foremost, that the developing story is based on hugely important revelations, and that this constitutes a significant journalistic coup or even just an act of great personal courage on Greenwald’s part (let us see how quickly he will come to be investigated) both your analytical capacities and your ‘conscience’ would seem rather shallow (whether it is a conscience of a liberal or whatever other principled variety of political thinker you ostensibly imagine yourselves to be) .

    I encourage you to come out with another column /post in the next days through which you take an equally “bold” stance defending Mr. Greenwald and whomever else from the witch hunt that is seeming to now be developing around his “reprehensible” “leak” (as James Clapper called it). After all, you will be well placed to do so. Because you can just let everyone know that you are not taking that stance b/c you are a knee jerk “liberal”/libertarian (or were you a progressive? or a social democrat? a ‘left wing’ person? you might try reaching for some other vocabulary of political affiliations than the limited repertoire commentators in our intellectual culture permit themselves). Rather, if you can muster the ability to pen a column defending Greenwald’s achievement for what the also are (in addition to whatever you have initially made them out to be in your own thinking), then you can tell everyone you don’t feel that the DOJ should investigate him b/c “Hey, he leaked nothing of importance anyway. Duh. I know about wiretapping in baltimore. So let’s relax. No need to vilify or go after this Glenn Greenwald guy. He’s irrelevant and a grandstander. And remember, I’m an independent thinker. I’m david simon. Take it from me. I worked on the mean streets of Baltimore.”

    Forgive me for my own tone if it has crossed some line of shrillness. But your post was disappointing, grating, and off putting, to say the least. I read it b/c I liked _The Wire_ and _Treme_ and saw it linked form another site. But it was an unpleasant surprise, reading like a thousand other predictable attempts at minimizing/villifying Greenwald that are now bubbling up to the surface.

    • We disagree.

      Mr. Greenwald’s reporting on the leaked court order was appropriate. I have not complained one word about the reporting of the leak. Mr. Greenwald’s conclusion as to what that order actually represents in terms of civil liberties and in terms of the legal history of telephonic monitoring and electronic intercepts was unsupported by reality and biased. Had he withheld that, I would have had no criticism whatsoever for his or the Guardian’s role in this.

      The reporting was fine. The conclusion they then forwarded from that reporting was bullshit.

      I don’t know how to cite what I know of electronic surveillance without referencing my frame of knowledge. If that strikes you as self-aggrandizing, I don’t quite know how to respond. To me, it is the sourcing for the example cited. And I think it relevant because it reflects what the U.S. government was capable of in terms of data gathering on telephones of non-specific targets even without FISA and the Patriot Act. The example provides a proportional reality to the fevered commentary around this so-called controversy.

      I have real problems with the secrecy and oversight of the FISA court, just as I have concerns about the possible misuse of this data. But pretending that the data doesn’t exist, or that it is somehow a constitutional violation for the government to merely gather it is just absurd hyperbole, and I have said so. If that much is an affront to you and requires you to adopt a particular tone, so be it.

  • Hi David,

    Just wanted to say, because it seems like you’re actually reading (and even responding) to public comments on this post (which is pretty incredible in and of itself), that I came across your blog from a friend and thought it was incredibly insightful and fascinating to read. I’m glad I took the time to actually read it and consider some thoughtful commentary on the current state of affairs.

    Thanks for being smart and adding important discourse to the dialogue. Even if because of all the crazy amounts of data we have and are producing, many will not even see it, or consider it, or just choose to reject your ideas because of whatever cultural, personal, political, etc. views they might have, it is still important.

    Hope you enjoy your weekend,

    Dean

  • There are so much things I’d like to point out in your arguments, but I’ll limit myself to one: Why on earth don’t you and does almost nobody else in the US question the surveillance of all the foreigners? If the US-citizens want their government to spy on them to get their “100% security”, then fine, your problem. But we have no oversight and I think no trust in the US-government. We (I am european) were never asked about this, we had no vote. Maybe we are fine with a lesser level of security for more privacy? Especially people like the ones living in the former Eastern bloc who know where it leads, if a government wants to keep a watch on everyone.

    You David, defending this kind of behaviour and forgetting to mention the totally unfair treatment of the rest of the world in this matter leave me very saddened and deeply disappointed at the end of this day.

    • Yes, gentlemen don’t read each other’s mail. Except when it comes to espionage and counter-espionage, the whole world does.

  • Your points vis-a-vis telephone records are fair. It has long been suspected that NSA is collecting a variety of call detail records (or “call metadata”) for substantially the purposes you identified: pattern-recognition, and knowing where to dig deeper for wiretaps and call audio.

    But the details of the alleged PRISM program are troubling because 1) it implies the cooperation of a wide range of US internet content companies who never indicated that they were disclosing such information, 2) it revealed the intention of the US government to classify, deny the existence, and criminalize any revelation of the existence of this surveillance until the year 2038, 3) the government does not deny PRISM’s existence, but these tech companies say they have never heard of it — so someone is lying, 4) if PRISM is a secret, there are probably other comparable programs that are also secret, and which the government’s policy is to lie about, 5) the distinction between metadata (call records) and payload (audio) is readily apparent in the case of phone calls, while it is much less clear for social network data and email.

    Americans can handle being spied on and they can handle being lied to. But they get really pissed off when they are lied to about being spied on.

    If the Federal government just came out and said what they were gathering and from whom, most folks would accept it, and it would have little negative effect on law enforcement’s ability to detect patterns. But there is really no point in trying to keep such programs secret — especially now that they’re not.

    • I agree that the FISA-court is too secret and that the silence prompts shock and dismay when leaks such as this one do occur. But to be fair, some of what the FISA seeks to protect is the processes and mechanisms that we use to gather intelligence, as well as some of our sources. Somewhere between revealing too much methodology and leveling with the American people as to the scope of our data-capture is where we need to be. But yes, the silence creates a vacuum into which the scandal-mongering fits nicely, I agree.

  • Mr. Simon,

    Your post is so full of logical fallacies and perversions of history I’m not entirely sure where to begin.

    So, let’s start at the beginning. You assert historical examples of the Baltimore police dept’s intrusion into payphones as some kind of historical justification for the current abuse of citizen privacy. So let’s talk history.

    Our Fourth Amendment rights stem very specifically from a tool abused by the British called a writ of assistance (or general warrant) that allowed British officials to gather information and suppress writers of “seditious” pamphlets that were critical of the King. Even before America was an independent nation, English judges, in England, recognized this practice to be an overreach of the King’s authority. John Adams, in a later court case tried in colonial Massachusetts, cites a colonial judge’s refusal to grant these same rights to colonialists as the “spark that lit the fire” of the American revolution.

    We all know the first part of the Fourth Amendment, but allow me to quote the latter part: “…no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    “Particularly describing” is the crux of that right. That this right has been trampled on over and over again, by both police and courts, is no justification for it to continue. That’s a “have your cake and eat it too,” rationale if ever there were one. It’s a tautology. A logical paradox.

    You blithely state that Americans and the media are either ignorant or uncaring that this has been going on since John Poindexter was appointed to head a program called the Total Information Awareness system since at least 2002. Patently false. Even in the aftermath of 9/11 that program didn’t pass the smell test and was halted (or morphed into something more secret). Even then, in the aftermath of that great tragedy, we as a nation said, “no, that’s too far.” So, now, when fervor over this abuse has reached a crescendo, finally, thankfully, you say to us, “calm down, this has been going on forever.” I call bullshit. Slavery was in common practice for over a century. Universal suffrage didn’t happen until well into the 20th century. By your rationale, these practices are justified merely through custom and culture.

    I too was once cops and courts reporter. And, I too decided I’d had witnessed and not been allowed to expose enough hypocrisy that I became disgusted and left for green pastures, to wit: the tech industry.

    Your overall thesis suggests that Americans are too stupid to understand how innocent this program is. I submit to you that you are too ignorant to understand just how much I can know about you without ever listening to your phone calls, read the body of your emails or know the names of the people in your Facebook photos (although in the last case I can easily use off-the-shelf facial recognition software to establish that).

    I am, frankly, astonished, sir, at your blasé attitude about this program. I expect more from you. You of all people should understand the realities of the world when it comes to policing. Where there is an opportunity for a cop to abuse the system it becomes a question of when and to what degree, not if.

    What’s more, you use as your primary justification a drug case. You of all people should understand how much potential for abuse there is where the policing of drugs is involved. The historical record if rife with examples of abuse where cops and drugs are concerned. That people even face sanction for personal possession of drugs in this country is a fucking travesty…and you know it. So, why trot out a drug case to defend the industrial scale of abuse of executive powers?

    And before you get into any digression about there being no specifically enumerated right to privacy in our constitution let’s talk about the penumbra of privacy that is guaranteed by any number of articles, amendments and clauses in our laws. You purport to be somehow better informed than the average American (and, generally speaking, I have to concede that you are), so I’ll let you explore that on your own time and get back to me with a response.

    One of the things that this program will destroy, to cite a very specific example, is Tor onion routing. By being able to monitor the nodes all at once, a useful piece of software that has help liberate countless people and allowed any number of revelations to the media. That’s fucking gone.

    I’ve lived in more than one non-democratic country, I was in fact born in Saudi Arabia, and I can tell you from experience that for all the problems our corporate media has, it ain’t got nuthin on media in a totalitarian state. Those newspapers, I’ve worked for one, effectively function as very expensive PR vehicles for the state.

    Look, I generally see your point of view and often agree when I do, but that we as a people began to cry foul late rather than never is an argument that holds no water.

    I don’t mean to be personally nasty, but only match the spleen and disgust you display in your original post.

    • I don’t mean to be personally nasty either, so I guess we’re fine.

      Your legal history is what it is, but generations of American courts have upheld these evolving standards for electronic intercepts. If we want less liberal standards, we are going to have to repeal or revise the legislation with which we have developed Title III, FISA and the Patriot Act. That is an argument worth having. That the feds have done something illegal by gathering this metadata is not a viable argument. Nor is the argument that they have done so to use it for things other than what they claimed was the purpose.

      That it may be misused is a possibility. I would agree that there should be remedies and punishments by statute for such occurrences. But that is also not what we are discussing today. We are instead scandal-mongering a non-existent scandal.

      • I don’t really understand what you mean by scandal-mongering. It is a scandal. It has been an evolving scandal. it will continue to be a scandal whether the media take notice or not. Evidence for that position is the response of almost everybody who has commented on it. Ipso facto.

        Title III requires police to exhaust all other means before granting electronic interception. You know that and your use of it as a red herring doesn’t escape notice.

        Generations of courts have upheld any number of standards that we now recognize as egregious violations of our civil liberties (e.g. slavery, abortion, death penalty for minors, suffrage, ad infinitum).

        It is intellectually disingenuous of you to continue to say that secret courts have upheld these standards without addressing the fundamental issue I’ve put forth, namely: it’s wrong, ineffective and no amount of legal precedent makes it otherwise.

        Please answer this: if this program is necessary and effective why didn’t it catch to Boston bombers?

        Scare-mongering is a term I’m familiar with and it’s past time we stop bullshitting each other about the reality of the threat this program purports to defend against.

        This program will morph from national security defense to things like prosecuting money launderers and persecuting whistle blowers. Isn’t interesting that the source chose an English paper to report this to? Why do you think THAT is?

        • It’s a scandal to you. And to people who agree with you.

          To me, it is bullshit.

          When the misuse of that metadata for purposes other than national security is evidenced — and a real possibility exists, I agree — then it will be a scandal. But given that the data was obtained by a legal court order under statutes that have been passed by our national legislature, signed by our executive and upheld by our courts thus far, it is scarcely a scandal in my eyes. And if the data is used to ensure national security and not to target individual Americans for domestic activity unrelated to national security, then it will soon cease to be a scandal for many, many others.

          If on the other hand, we decline to gather or use the data to extrapolate intelligence, and if some shit blows up, and if we find out — after the fact — that electronic intercepts of the perpetrators or their handlers was there for the taking, well, that will be a different kind of “scandal.” And the tone of the Congressional hearings will be decidedly different.

          • Like ships in the night.

            We’re talking about two different things. YOU are talking about an ideal world where faceless superhero technocrats save us from an existential threat.

            I am talking about the real world. You are in the enviable position to have “fuck off, money.” I have to work for the man. And part of my job is to build the very systems that keep Americans safe. That’s really all I can say about that.

            You have my email, but I, unfortunately, have to hide behind a fucking pseudonym because I’m afraid I’ll lose my job, which relates very closely to the issues at hand, for speaking out about what I know to be true. See what I just did? Hard to argue with a man who purports to have secret knowledge. I’m gonna coin that term as an “Obamanism.”

            I respect you and your work, but somehow we are talking past each other despite a shared history and vocabulary. For that, I’m saddened.

            You cannot defeat a tactic of warfare, terrorism, by imposing increasingly onerous restrictions on the citizenry and violating more and more of the values that shaped our democracy and still claim to be a democracy.

    • In a compressed window of time, when they are trying to sort various possibilities through a database of billions of calls — it It isn’t only the computer work that requires the time, it’s the human analysis after the run. Every possible connection between overseas intelligence and something as vast as the data base of all U.S. phone calls overseas over a period of years that gets the flag of the NSA computers then has to be analyzed to see what if anything it actually represents.

      Otherwise, garbage in and garbage out.

      And that is man-hours for the intelligence community. You think that in addition to that, the intent her is to do computer runs all the people who say “cheating” and “taxes” in the same conversation? Or “kiddie” and “porn”? The computer run is the easy part. Analyzing and synthesizing the results and separating wheat from chaff is the issue.

      Can the data be misused by government? Yes, yes, yes. Do we therefore ignore the proactive potential of the data vis a vis terrorism and national security? Or do we create viable oversight and sanctions to respond to misuse?

      • Your question was “How many COMPUTER-runs do you think the NSA can do?” Quite clearly, as many as is required.

        As for post analysis by humans…. have you heard of filtering, semantic analysis, AI? Systems are well developed by the NSA – they would be – the computers will do all the grunt work and filtering, the human spooks can do the rest.

        Regardless, I can see why an American has no issue with PRISM… here is a quote from the National Intelligence Committee statement following the revelations of last night


        The (PRISM) program is subject to oversight by the Foreign Intelligence Surveillance Court, the Executive Branch, and Congress. It involves extensive procedures, specifically approved by the court, to ensure that only non-U.S. persons outside the U.S. are targeted, and that minimize the acquisition, retention and dissemination of incidentally acquired information about U.S. persons.”

        Basically, this is specifically targeted against us (non Americans – that’s 6.7 billion of us) – not you. Of course you are in support of this.

        • So once the computers spit it all out, the NSA guys just fax it over to the CIA and army intelligence and the FBI and say, there’s your guys. Interesting, from everything I understand about the dynamic, it would seem to be that this is when the actual police work begins.

    • Why was this classified? That’s a question that’s been raised but unanswered. Terrorists certainly know of the existence of this data-mining. Many if not most Americans surely suspected it. What is gained by making it classified?

      • Agree to a point. While keeping specific methodologies secret, it seems as if the government could have mitigated a lot of unnecessary outrage by having an overall policy statement that revealed only as much as the potential targets already know. It is delicate, and you don’t want to discourage your targets from continuing to operate as they do. But yes, some very general sense of the scope might have been helpful.

        That said, there is judicial oversight and the Congress was fully and routinely briefed.

  • Best argument I have read yet against the extent of the leaks.

    Can I just ask if you agree that what you describe from Baltimore back in the day remains a targeted investigation on the basis of police work that identifying “certain city pay phones” being used by individuals known to them? Also, did the courts then ever allow swathes of home phones to be tracked in the same way as the public phones? I mean before there was probable cause.

    I think that’s an important definition when deciding if the analogy holds water.

    • They were targeted by geography. Like say, a cellphone number that keeps bouncing of the satellites from somewhere in say, the McCullough Homes on the westside — I mean, um, South Wajiristan.

      Yes, by the time the detectives were requesting to tap any phones, they had information from cloned pagers — again done without knowing who all the pager users were — and surveillances to lay the groundwork for probable cause. But we are not talking about wiretaps. This is about metadata, which is what a DNR or Pen register once gave investigators.

      Same game, different scope and different stakes.

      • I wasn’t clear but couldn’t edit my post.

        1980s Baltimore – Metadata taken from certain pay phones in targeted areas of wrongdoing. None taken from private phones.

        2010s US wide – Metadata taken indiscriminately from any personal phone.

        I agree the scope is the main obvious distinction, but the more subtle distinction between private and public I think is important.

        Nobody using a payphone has a contract with the network provider assuring them of any level of privacy whatsoever, for example.

  • As not an American, not in America, I aint thrilled about the ‘legitimate’ interception of foreigners’ communications.
    But hey, is everyone in the US going to stop using the internet because the Chinese can read your emails?

    • Fuck the Chinese, unless they get a decent dim sum in Baltimore. And I hope they read that in Beijing.

  • The difference is that we now do have the capacity to do massive, real-time analysis of this sort of data. There is a strong incentive to collect everything, because it can always be linked to existing databases when certain information gets flagged.

    We also know that suspected wiretapping equipment has been installed at various telecom operators, which show a court order isn’t required just to collect the data, but probably only to actually use it. This is ignoring the spirit of the law to follow the letter of the law, and still just bullshit.

    • Yes, the technological affronts to privacy are greater. So is the killing capacity of those disenchanted with status quo. The stakes are higher on every side.

      And I am not naive about government’s capacity to abuse information. But that information is going to exist. And I would rather acknowledge that and provide it to investigators with strict and transparent limitations on its use in other ways. I would like the FISA rulings to be reviewable not just by select members of Congress, but subject to a security-vetted civilian review panel that includes civil libertarians as well as representatives of the judiciary. And I want to see misuse of the data for purposes other than that represented to the FISA-court punished with vigor.

      That is where the debate should be today. Not where it is.

      • What about the precedent of the NSA, a Department of Defense organization, collecting data on American citizens? Are we not getting into the realm of digital violations of posse comitatus?

        • Yep. That is a concern.

          My guess is that the capacities of the NSA over at Ft. Meade to synthesize data are being brought under the FBI mandate for domestic counterintelligence and that the commingling of resources has been made possible by the Patriot Act. But it is indeed a bad precedent. Better if the FBI had the technical capability. Still, assuming the lead investigative agency is the FBI and the affiants on the case work are FBI agents and not spies, it is what it is. But your point is well founded.

          • Gosh, I wonder why the FBI doesn’t have the technical capability?

            I can answer that: the best and the brightest technical people, programmers and whatnot, refuse to go work for law enforcement due to historical tendencies of law enforcement to target parts of their communities or allied ones. Very few people will “go fed” without it being forced upon them. There is little trust for the feds in these communities as well.

            That’s one of the real tragedies here and events like this basically reinforce that feeling.

  • Interesting piece, thanks.
    David writes (in the same vein as many) that “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…”.
    Actually it is secrecy that is in decline. If the receiver of your personal information is constrained in what they do with it, then privacy is actually preserved.
    I’m not naive about the risks of personal information being abused by governments and law enforcement, and I am not yet convinced that such wide metadata collection is necessary and effective but I am not panicked by the monitoring because there certainly are limits on what can be done with it.
    That’s privacy.

  • Any journalist hollering in outrage over this needs to provide a resume of their work on the story between 2005, when we first learned about it, and now. bin Laden is dead and the wars are ending, it’s easy to crab about it now – but when it was the hard call? Silence.

    • Glenn Greenwald, the primary journalist behind these leaks, most definitely has been hollering all along.

      • I have no problem with Mr. Greenwald’s reportage, and I’m glad that at least one of the secret court orders from the FISA panel is out now for public inspection. I think Americans should be aware of the scope of what is being monitored and I think that it is a level of too-thorough secrecy at FISA that creates make-believe shitstorms when people suddenly confront the reality after a long silence. Mr. Greenwald is right to honor the leak.

        My argument is that he should have published the facts and eschewed his own — and in my opinion, historically unjustiable opinion — about the nature of the data-gathering and whether it was indiscriminate and overbroad. I think he got that wrong and spoke without an argument behind his assertions — other than the fact that the data itself isn’t be gathered for a particular suspect. But as I’ve indicated, that is not historically or legally unsound when it comes to even pre-Patriot Act wiretaps under Title III of the federal code.

        • Agree completely. The FISA leak is newsworthy because the court orders have not been disseminated to the public. The idea that the United States federal government abused its data-gathering privileges is unsupported by any concrete data.

          Glenn Greenwald has a long history of making gross assertions regarding the United States federal government, especially in relation to civil rights and foreign policy. Worse, he often responds to his critics by accusing them of conducting smear campaigns.

          Thanks for the cogent post on the issue, Mr. Simon. I hope you do not have to deal with subsequent accusations from Greenwald. Or you can just ignore them 🙂

    • When there is an overreach or misuse, punish it aggressively. And yes, the FISA-court needs to be subject to a more careful and independent review of its actions, despite the need for national security.

      But if you’re going to tie law enforcement’s hands and pretend there is no data that can help identify terror suspects — when such data exists — well, say so. And stop bullshitting.

      • I’m not interested in tying law enforcement’s hands. I understood you to say earlier that there had been no evidence of abuses. Perhaps I misunderstood.

        • There has been no evidence of abuse. No one has raised a case of this metadata being used to target Americans, or to monitor Americans for purposes other than national security matters.

          I also said in the next breath that such abuse may be ongoing, and over the course of a protacted and diffuse contest with stateless, diffuse terrorism, it may be an inevitability. Governments, unless subject to careful civilian review, do what they do. The underlying secrecy of the FISA-court oversight is problematic, and I have said so — repeatedly in the post and in these comments. I would much prefer more civilian review of the court’s actions in a manner that still protects national security.

          But pretending that we can’t track communications between overseas entities and terrorism suspects domestically? Pretending that the data shouldn’t be utilized in a proactive attempt to thwart terror? Good luck with that notion. I’d rather fight to maintain civil liberties in a place where some relevant battles can be won.

    • Your example in Baltimore is perfectly reasonable, but my suspicions of serious overreach are not quieted when Obama says today what he did: “It’s important to recognize that you can’t have 100 percent security and also then have 100 percent privacy and zero inconvenience.”

      It reminds me of Benjamin Franklin’s immortal words: “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” Do we live in this constant state of fear forever with an ill-defined neverending war? They had all these clues about the Boston bomber long before he committed his act, but none of this vast sweeping of everyone’s data didn’t help. What good is grabbing all this information if there aren’t enough competent hands to winnow out anything that might be significant? Who didn’t laugh when Obama today cited “Congressional oversight” as a safeguard when partisan politics routinely trump legitimate concerns. McCain and Graham can wail about Benghazi but still skip briefings about what happened so they go on TV to continue their jihads. Perhaps if the Baltimore P.D. were handling these programs, I’d feel better, but I don’t have much faith in the ones who do handle them and those who oversee them, especially since the key judge in signing the phone order allowing for the sweeps also was one who declared that all of Obamacare should have been tossed out as unconstitutional.

  • I don’t think the analogy holds. The Baltimore cops weren’t collecting dialing data from every phone in the city, or even every phone in the city from a given provider (there was probably only one then). They were collecting numbers dialed from specific pay phones for specific reasons. It may be that the showing needed was very low to add another phone – as little as a cop stating that the phone was known to be used by drug dealers – but that’s still very different than sweeping up everything and looking for patterns.

    Certainly its true that we shouldn’t be surprised by this. Also, from what we know so far, it seems to be true that it was entirely legal. And it seems to have been going on for a long time.

    But the question is whether it should be legal. Whether it’s okay to collect everything and ask questions later. Or whether, as the Baltimore cops had to, there should be some reason to suspect that the particular set of data is connected to wrongdoing.

    There’s a lot of room to debate where the line should be drawn. We seem to have irretrievably moved from “you have reason to suspect the specific person to be monitored.” But there’s still plenty of space between that and “grab it all and crunch it in your computers.”

    But you’re probably right, they are probably maintaining a database as a tool. I’m not sure why the changes anything. The data is available from the phone companies without being complied by the NSA, or can be made that way.

    It’s really strange to me to see people dismissing this as being politically motivated or anti-Obama. For some, it probably is (although I think you’ll see the GOP line up behind this NSA stuff pretty fast). This is about where we draw the lines between the private (and semi-private) in the modern world. Neither party has been very good about thinking about it.

    We let the drug war strip most of the meaning from the 4th Amendment. Then 9/11 happened and terror took things even farther (including degrading civil liberties under other parts of the Bill of Rights). We’ve now had more than a decade of that panic. It’s time to take a step back and think about what the right policies are with more sober state of mind.

    • Again, the scale is different.

      In one instance, law enforcement is trying to arrest drug traffickers who are selling heroin and cocaine on certain Baltimore corners. In the other, law enforcement is trying to ascertain communications between localized terror cells or potential suspects here, throughout the whole United States, and organizational support abroad, throughout entire regions of the globe.

      Scope is the only remarkable difference.

      The analogy, I would argue, holds precisely with regard to:

      1) The legal precedent and requirement for DNR and phone record info and the standards for a court order.
      2) The moral logic that underlies the decision to balance privacy rights — in one case the tens of thousands of Baltimoreans who used those phones legally, and in the other the tens of millions of Americans who did so through Verizon — against the needs of law enforcement.

      I agree with you about governmental overreach in key places, especially the drug war. And further, I wish there was great outrage at the summary execution of American citizens by executive fiat overseas. The use of lethal drone, absent even an absentia trial on the evidence in front of the FISA court, is a grave offense against our democracy. There are many places to make a stronger argument for civil liberties and against national security. This ain’t one of them.

      • I wrote a longer reply, but it seems to have been eaten (I suspect you’re getting more traffic than usual). Overall, I think we agree more than we disagree.

        But I think there is a difference beyond scope. In your Baltimore example, the police had a specific reason to seek a subset of all available data. I would be substantially less concerned if the NSA was seeking a particular subset of data, for example, calls to and from numbers that had called particular regions known for their terrorist activity. I just see a qualitative difference between having a reason to find a subset of data relevant and requesting all data and then, perhaps, using computers to derive reasons why it was relevant.

        Which I guess means that I disagree with your second point.

        I wholeheartedly share your concerns about the use of drones, whether the target is American or not. But that something else is worse does not allay my concerns here. And, sadly, it may be much more politically viable to begin to rein in the war on terror with smaller abuses that effect more people.

  • Mr Simon. Just read your post on here and you hit the nail on the head. Especially when you point out your old days at the Sun when police would use the raw data to make ends meet. You’ve managed to break it down in simplicity to the point of “if you’ve got nothing to hide, why worry about it” thanks for your time and years of great reading and entertainment .

    • I don’t agree with “if you’ve got nothing to hide” statement. Everyone has stuff to hide, or if they don’t, they might want to live a more interesting life. I’m joking, but better to say, everyone has a right to hide stuff from the government.

      More to the point, I am saying, “The government sought a court order and are seeking X for purposes of Y. They have been given X. If they seek anything other than Y, then there needs to be a credible and punitive deterrent either at the FISA court or in an ongoing review of that court. As with the last four or five decades of electronic intercepts by law enforcement.

  • Former Terrorism Chief Chief Richard A. Clarke (who wasn’t taken seriously by Condi Rice before 9/11 on OBL) has said that the moment Congress and the public gave Homeland Security/NSA/CIA a blank check after 9/21, they did what all bucracracies did, they grew.

    I can’t believe people are barely widening up to the reality that all of their data isn’t private. Um, hello?! Those data “fusion centers” were being built up years ago.

    Like David has said, even 20,000 counterterror officers aren’t enough to sift through all this data. They often miss stuff. Either because there’s so much data or basic errors like the Times Square bombing plot where NSA databases didn’t have spellcheck. I think the chances Joe Six pack is being surveilled by NSA without probable cause is highly improbable.

    There are huge political risks in reducing the size of security. If there is another sizeable terrorist attack and that coincides with a reduction in security budget will pay politically.

  • While you make a good point in regards to the Baltimore example, there still seems to be a serious case of overreach here, something I felt more certain when Obama defended the programs with this quote today: “It’s important to recognize that you can’t have 100 percent security and also then have 100 percent privacy and zero inconvenience.”

    I always recall the immortal words of Benjamin Franklin: “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

  • Good points all. The only beef I have is this: Instead of the government collecting and sitting on all those billions and billions of call records..how about just requiring the phone companies to retain these records?? (wait..we already do require that). When the government has a reliable tip it wants to follow through on..why can’t they just just run whatever queries or analysis they want on that data set? Speed up the process for getting court approval in such situations if you want. The problem with the government collecting and sitting on all the data is that it CAN be abused….not necessarily that it IS being abused at this very moment.

    • I can think of variety of technological reasons why the government would want that data on hand, presorted and not raw, so that when intelligence comes into an agency it can be compared with relevant portions of the data base. (i.e. calls to a particular Central Asian or Middle Eastern region, or locale, for example) rather than the feds having to obtain a court order for a re-dump and then a re-sort all over again.

      Also, in the event of a cyber-attack, wither in conjunction with another terror act or alone, I would probably prefer to have all the data stored in some secure system somewhere out at Fort Meade that is less penetrable to attack than over at the Verizon offices.

      I’m guessing that neither of us have a complete handle on the logistics involved in the maintenance of that kind of database. If someone else can speak to the possibility of secure and efficient use of a remote, privately-held data base, I’d be interested. It’s a reasonable question, certainly.

    • And you, in a single sentence, have revealed yourself to in possession of no argument that can matter.

  • Mr. Simon,

    I have read your article and comments. I agree the genie is out of the bottle and there is no going back. Throughout the history of the world governments have lied, cheated, killed, surveilled, tortured, and helped their citizens. It is only an matter of time before the use of the collected NSA data is used improperly by corrupt officials. This program has been going on for 6+ years, some unhappy individual involved will always come forward. Possibly going on now since this information was leaked by a high level official with SSBI clearance. It is human nature. Trust is the issue, we no longer trust the elected officials on the oversight groups, legislative or judicial. We are a divided country, by religion, ethics, demographics, income, politics, race, gender, and beliefs. For better or worse, we as Americans must work together on national security issues devoid of emotion or our individualities, which make us such a great country, so we may stop lunatics from destroying us.

  • David,

    Wonderful thoughtful post. I’d like to get your reaction to a different area of concern for U.S. residents. That’s the idea that this administration, and others before it, treat the unwashed masses like little children. Hard to walk away from Obama’s presser today without the feeling of being patted on the head, handed a lollipop and told not to worry about the issue. I have to believe a lot of the trumped up anger over this issue is because we’re being treated like children.

    Plus, I have to believe you’d appreciate the irony of Obama starting off his comments today on the issue by saying he’s glad to have an open, transparent conversation on this topic, while subsequently lamenting and blasting the leak happening in the first place. I think the hypocritical nature of elected officials is another part of the concern.

    Thanks as always,
    Rob

    • I thought Mr. Obama did a poor job of conveying the reality. I agree with you. When you lay out the hard choices, most Americans will behave as adults, if not initially, then once the totality of the issue is made clear. I don’t think the president did it very well, no.

      • Many thanks for the reply. I do appreciate and mostly agree with your view on this. Hopefully it wins dominance over the fear and hyperbole out there now.

  • Thanks for this post. Was getting tired of the hyperventilating all over the internet. The New York Times op-ed page really went overboard.

    • Well, to be fair they’ve always opposed the Patriot Act — and I agree that there are legal overreaches in that document. And further, I think the NYT, as with all mainstream media, is further incensed by the DOJ snooping into their phone records — not as a counterintelligence or anti-terror issue, but to plug government leaks. That was indeed overreach.

      So those guys are running a fever to begin with.

      • “So those guys are running a fever to begin with.”

        That, I think, speaks to the core of what’s wrong, or at least weak, with your argument. You completely ignore the era in which we’ve all lived for the last decade and more. Shouldn’t we all be running a bit of a fever about the US government’s (and others as well) overreach on matters concerning privacy, secrecy, transparency, etc.?

        • Fever is fever. I admire a rational discussion. And I go issue to issue and try to address problems pragmatically. Sometimes, I am labeled a socialist and sometimes, as in this case, a fascist. That is some comfort to me, actually. I did not always agree with Christopher Hitchens, but I admired his willingness to address each issue on the merits, and remain indifferent to labels and ideologies.

          If you think a liberal, or conservative, or libetarian or progressive prime-directive can untie all of the knots, you are probably about to say something stupid about some issue in particular. The New York Times has good points about the overarching secrecy and scope that underlies the Patriot Act. They also have a fine argument against the DOJ’s hunt for news leaks. When they commingle those arguments with an attack on this very legal gathering of metadata, they do damage to those earlier arguments and say nothing convincing about the present controversy.

  • Hi David

    I respect your expertise on wiretapping, as well as your skepticism about the threat to liberties uncovered by the NSA/Verizon story. And you may well be satisfied with President Obama’s comments today about balancing citizens’ fourth amendment rights with public safety and counterterrorism concerns.

    But on the technical issue where you make a distinction between the NSA’s metadata-trawling and targeted intercepts of the content of communications requiring a specific warrant, I wonder if you have read Jane Mayer’s post for the New Yorker, citing a source she used when reporting the Thomas Drake case:

    “The public doesn’t understand,” she told me, speaking about so-called metadata. “It’s much more intrusive than content.” She explained that the government can learn immense amounts of proprietary information by studying “who you call, and who they call. If you can track that, you know exactly what is happening—you don’t need the content.”

    With great respect (and putting aside any pique at the Guardian being called ignorant and alarmist about the nature of metadata collection), I’d suggest that you are being altogether too sanguine and trusting about the powers here arrogated by government agents without sufficient oversight. How do you respond to Jane Mayer’s points, please?

    Regards, Matt Seaton

    • Hi Matt,

      What is there in Jane Meyer’s points that needs responding to which hasn’t been said? There’s a difference in scale between the kind of number tracing described in the OP above and in what has been recently revealed by the Guardian among others, but that’s it, as far as I can see.

      That quote doesn’t make sense on its face. Metadata cannot be ‘more intrusive than content’. How is knowing that I’ve called my wife more intrusive than knowing precisely what I’ve said to her?

      The intrusion comes about because patterns in the data allow people to infer the actual content from those patterns. But that isn’t the same as actually listening to the content itself. By definition.

      • I suspect that Jane Mayer didn’t accurately quote this source, either. Yes, a collection of all the metadata of your calls might show patterns that could be intrusive, particularly if, as with cell phones, position data might be included.

        Add all that metadata up into one file, and it will be smaller than a recording of the first minute of one of your phone calls. (Generally, the “minimization” period.) Byte-to-byte, metadata is more informative. But a single phone call can convey more information than tens of thousands of pen register entries.

  • You need to look at where we were, where we are and where we are going. https://www.youtube.com/watch?v=GUPd2uMiXXg

    Looking at big business, government and history I think the direction is clear. Upper management and government offices are a game of musical chairs. Insider trading. Recently passed laws allowing it for them. They are setting up a completely rigged game with no escape. We are merely human resources. Fall out of line and you will be dismissed. Read up on the new Xbox. A trojan horse for spying.

    With education dumbing us down, it’s a bleak future until we come out the other side. Check out The Ultimate History Lesson. I think you are naive, experiencing cognitive dissonance and normalcy bias.

  • David: while I find you do have a point about the reality of data availability and potential uses by big brother, I am a bit surprised you don’t address the relation between NSA and the data service providers. Private corporations secretly allowing the NSA to access the data that I agree to share with them without letting me know is an entirely different ballgame than the government doing its job. For corporations like MSFT, Google and Apple (who are having a real stake and active role in the drafting of legislation and the lobbying effort going into it) to engage in a secret tit-for-tat with government agencies is a breach of trust with their clients. That’s the real problem here.

  • My only complaint with the article is your assumption that the answer to big data is either let it be distributed (ie. with the vendors) or let Big Government compile a massive database of everything we do and where we do it, just make sure they get a warrant if they need to actually use it.

    I think the answer can be somewhere in the middle. From a technology perspective, the answer to big data isn’t to create your own version of big data, that defeats the point. The real question should be: can we enable law enforcement and intelligence agencies in a timely fashion to access this data? It is a difficult one, sure. But I think it is possible, especially if the government partners with industry in a transparent and agile way to set the rules of engagement instead of relying on massive pulls of data. This doesn’t have to be an us or them answer.

    I appreciate the nuance of the post, acknowledging the difficulty in discovering overreach. I think that is largely the point of the intelligent outrage out there. For many, what we see in the massive pull from Verizon is only the visible part of the iceberg. Obama has been a paradox in that sense. There’s been great transparency in other areas of governance. But in terms of national security, civil liberties seem to get 2nd fiddle every time they are considered. THAT is the debate we should be having, in my opinion.

    • I agree with you. That is indeed the debate.

      It is not what is happening today in light of the Guardian’s reveal of that court order.

  • Merely acknowledging that the secrecy with which FISA is operating is “problematic” doesn’t really address the objections to your argument on that basis. Maybe it’s so problematic, that the case for keeping these things secret from the public no longer holds. You can’t just set aside a valid objection and proceed with your argument.

    You also seem to be saying it’s likely a government operating in secrecy with these powers will abuse them, but until that happens, we shouldn’t object to them. But that’s putting the burden of proof on the public to know what it’s government is doing in secret, the same government that allowed torturers to remain free while prosecuting whistleblowers, the same government that believes it can kill any military-aged male in countries with-which we haven’t declared war and as you point out can kill American citizens without due process. Shouldn’t the burden be on the government to be transparent and leave it to the citizens to decide what they should and shouldn’t be looking at in the name of national security?

    As Greenwald writes: “public” servants’ activities should be known to us, but “private” citizens’ activities should be private barring more than a general fear of terrorism.

    Finally, all this snooping did not prevent the Boston bombing, and on 9/11, the guys who flew the planes into buildings were already monitored by the FBI (before all this NSA security state bullshit) and moreover, were four nutjobs with boxcutters. They hit on a 1 in a million long shot. There are some enemies, many of our own creating, who do want to hurt us, but for the most part, the odds of any of us being affected by them a far less than dying in a car crash, contracting an infection in the hospital or dying from the unhealthy foods and chemicals in our diets.

    • I understand your points, but I don’t think they all quite line up with the argument he’s trying to make:

      – If you can’t (a) concede a valid objection, and then (b) proceed with your argument, then debate pretty quickly becomes impossible. In the essay, and in some of his responses to various comments, Simon clearly acknowledges that there are substantial issues with FISA, and that some people — like you, apparently — might find them much more troubling than he does. I don’t think the fact that you disagree with him on that point means he doesn’t have the right to advance the rest of his argument, though.

      – He’s pretty clearly not saying that we “shouldn’t object” — he literally says “There are reasons to object to governmental overreach in the name of law enforcement and anti-terrorism”. His argument is that we shouldn’t _overreact_. Granted, that’s a very subjective standard, and Simon’s bar is set a lot lower than many people’s, but he’s not arguing that people should just accept government secrecy until proven wrong.

      – On your final point, I don’t think _prevention_ is ever going to be the main standard for evaluating a program like this — _resolution_ of a crime, after the fact, is going to be much more compelling. Just as camera surveillance and facial recognition technology have gotten much more culturally acceptable after they helped to catch the Boston bombers, resistance to this kind of meta-data tracking will shift significantly if it becomes seen as playing an important role in solving a major crime or terrorist act.

  • Just yesterday I was talking to a tea party type who was very suspicious of my claim that Obama did not create tha Patriot Act. Also of my claim that the government is not a big “them” out there oppressing the common people, but rather a living body for which we are responsible. Some days all I can conclude is that we are dumb and paranoid, willing to create bogeymen so we don’t have to take responsibility for our own lives. I don’t remember a single founding father guaranteeing us a right to unmonitred Verizon calls. So I like it? Nope, but like you said, we give it all up for the sake of technological convenience.

  • Why are the media outlets getting raked over the coals when the outlets are being fed information from NSA whistleblowers in the first place? The guy who went to the Post referred to the entire PRISM program as a “horror” and said he basically couldn’t sit and watch Constitutional rights of Americans be infringed upon.

    If everything is on the up-and-up, and this program does search for the right “needles” in the right “haystack,” then why are people alerting the outlets in the first place? If this has been the status quo for years, why now? What’s changed to have these people come forward?

    I agree with you in some respects that a lot of this may be overblown because the American public already thought this type of surveillance was already going on, but I have to believe something nefarious is going on if the NSA is leaking info of the program’s capabilities. What’s the motive of exposing a program that combats terrorism if the program isn’t living up to its billing?

    • Everything leaks. And everyone has their reasons for leaking.

      But two things we both can’t know at this point.

      1) That the data collection has NOT resulted in gains for counterintelligence or anti-terrorism activities.
      2) That the data HASN’T been misused or other purposes.

      Both things have not been shown. I will argue that given the risks of the geopolitical world as it exists, and given the risk of abuse of this data by the government, it is inevitable that the data will exist as a law enforcement asset. Therefore, I am arguing that today’s debate about the gathering of that data is useless and oblivious. But tomorrow’s debate about how to set limitations for the use of the data, and the resulting criminal and civil penalties for violating those limitations — and creating a viable, but secure window into the operation of the FISA-court — this is the real debate for the world to come.

  • You really miss the entire issue. You really don’t know what is happening in the telecoms companies. You really are just applying your bias to exonerate a completely awful situation. This isn’t new, it is old, and it never deserved to be wiped from the public’s minds in the first place. Well done Guardian for bringing it back up.

    • I see. Your argument is this, precisely: I don’t know. You do.

      Well, that settles it. Thanks for that. Never really thought it could be so simple.

      • Oh, Mr. Simon, you know, you just live in your ivory tower fantasy land, where you do nothing but glorify the lives of the rich and famous.

            • Why, just yesterday I was a socialist bleeding-heart.

              Christopher Hitchens, a writer I very much admired, came to every issue and thought about it. If you think any ideology will point the way through all problems, you are probably about to say something to prove yourself a complete ass.

  • While I agree that it’s silly to worry that Obama is spending his nights listening to our phone calls, it’s still a disturbing trend. I don’t need to be up to something nefarious to be concerned about the government having the ability to dig through my movements and communication patterns to find evidence of wrongdoing retroactively if they decide I’m someone they want to watch. It’s all well and good in the abstract, but how long will it be before someone in the FBI decides to use this data for personal reasons?

    If nothing else, it seems there should be a Fifth Amendment argument to be made here.

    • We are in the modern world. It’s creepy, I agree.

      But as I said, I am waiting on the first case of this data being misused. Then, we have a righteous scandal. And then, we can set about to address the lapses in the FISA-court approval process, and the lack of independent oversight amid so much secrey. That is where to address the inevitable need for balance and reform.

      Pretending the data doesn’t exist and denying it to law enforcement — and then in the same breath asking them to prevent acts of terror here or around the world — is a ridiculous battle. We might as well take down all the TCA scanners and let everyone walk on a plane with whatever they want, then bitch later when an airliner goes down. It’s as reasoned a response to the reality in which we find ourselves.

      • Likely it has been “misused” and we just don’t know about it. We don’t know about much the government does, now do we, David? I think this week’s revelations are evidence of that.

        • There is too much secrecy in the operations of the FISA-court, I agree. I would like to see some carefully vetted civilian oversight of some sort.

          But as far as not knowing what our government was up to with regard to electronic data, I frankly assumed everything the Guardian’s release of the court order confirmed. I didn’t see how they wouldn’t be doing it under the reality of FISA and the Patriot Act.

  • “Given that there are billions and billions of internet postings, is it conceivable that the government is going to go through it all to see what Americans are up to and then systematically use it to violate our privacy and persecute us? ”

    They don’t need to do it by hand, they can do it using computers. The same way google uses data to recommend youtube videos for you the government can construct automatically generated dossiers on all of us using the PRISM data, and then search for people with certain proclivities, whether that’s terrorists or drug dealers or occupy wallstreeters or whatever they feel like looking for. And PRISM gets data on everyone in the world (except people in the US, supposedly) who uses facebook/google. Would you feel comfortable with the Chinese or Russian government having access to everything you do online?

    You don’t seem to actually understand what computers are capable of these days. They don’t NEED people to do go through the data by hand, everything can be automated.

    • You don’t seem to be able to read what I write. Read further into that answer from which you will quote and you will find direct and precise reference to the computer capabilities that are invoked on internet data. I understand the technology perfectly well.

      I also assume that whatever I do online is indeed accessible to various elements. I don’t like it. But that genie is not going back into the bottle, sorry. The remedy for the misuse of the data is not to pretend it doesn’t exist. The remedy, such as we have one, is to assure a court review of all intercepts and prohibitions against the use of the data for any reason other than the stated purpose of the data collection.

      The IRS knows every aspect of my financial status going back decades. But it is only at the point of convincing a federal judge that there is sufficient evidence that I am engaged in criminal activity that a law enforcement agent or officer can try to get a look at my tax records. And Census information can’t be accessed by law enforcement as a matter of statute, in order for the census to do its necessary work. Somehow, we manage to erect functional walls around government data domestically.

      Are there overreaching violations of privacy rights? Of course. Punish those. Create strict standards for the use of data for purposes of national security, for example. But pretend that the data doesn’t exist?

  • I agree about the hypocrisy element here.

    But it’s worth noting that improvements in Big Data technology makes it easier for organizations who can afford large databases to run meaningful searches on the data and to crunch them more finely than ever before. So it is possible for this information to be abused.

    When Target can look at my credit card bill, see how many diapers I buy and send me baby food coupons, we don’t actually know what the government can do with this data if it is inclined.

    However, private entities trouble me much more than the government because there is an established legal right to privacy from the government. There is no legal right to privacy from private organizations like, say, Facebook.

    • It is definitely possible for it to be abused, I agree. Knowing about the inevitability of government overreach, it is almost a certainty at points going forward.

      We will have to police our liberties in the context a low-intensity, but high-risk war. And we will have to fight for balance. And we need to react strongly when the overreach occurs. But pretending the data doesn’t exist, given the stakes? If you convince Americans to go that route, you do so only for as long as the next bombing on American soil. When the FBI director takes a seat in front of a reviewing congressional committee and says, in effect, “we found telephonic contact between the perpetrators and the following organization in Wajiristan on these dates, but of course we only found it after the fact because we’re no longer running our phone data through the mainframes…”

      At that point, reality intrudes.

  • What you gloss over, and what is so disturbing about these revelations, is that unlike with your folksy Baltimore examples and coppers pulling the LUDS and MUDS on Law & Order is that in this case the government has kept this classified precisely so that citizens will not be able to challenge the constitutionality of the regime in court. Several federal cases have already been dismissed because judges are forced to toss them because evidence that should be introduced is classified. Consent of the governed isn’t just a pretty notion for saps. You’re too cynical and dismissive here by half.

    A government regime of comprehensive, secret domestic spying is by definition at odds with our Constitution and democratic traditions. Take away the secret part–let the American people decide where to draw the line–and yes, such a program can be lawful. And now it looks as though we may actually get to have that debate. What exactly is your problem with that?

    • The government doesn’t tell you that they’re putting DNRs on phones, or pulling the phone records when they do it. They have a long window before they have to reveal this. Indeed, as with the Verizon data, they need only reveal it to a court for approval. The analogy holds.

      I do indeed understand where it does not hold: That the FISA court doesn’t later reveal the substance of its orders as an ordinary court would. I believe my essay repeatedly cited that fact as problematic. Perhaps you read over the several points at which I noted that the secrecy of the court and the limitations on outside review of its actions is a cause for concern.

      There will be overreaching violations of American civil rights in any secret proceeding. Just as Guantanamo is Guantanamo because it is outside the regular judicial process, and the treatment of sexual assault in the American military is as dystopic as it is because it remains within the much-less-open military judicial structure. I said all of that.

      You might want to reread the post and hold to its actual content before proceeding.

      • I said you glossed over it, not that you ignored it. Perhaps you should read your comments for comprehension before unloading the snark. My point is, the fact that this was set up as an overarching secret regime without the consent of the governed is the problem. Now that it’s out in the open, we can have that debate. The policing regime you discuss is known and accepted; not the specific instances, the program itself. Hope that helps clarify my point for you!

        • And yet, having cited your very concern, not once but repeatedly, I am taking exception to your claim that I glossed over anything. No gloss. None whatsoever. I included your very concern at points throughout the essay. And tellingly, “ignored” was a word that you conjured. Not me.

          That constitutes my best comprehension of my own comments and yours as well.

        • And yet, having cited your very concern, not once but repeatedly, I am taking some mild exception to your claim that I glossed over anything. No gloss. None whatsoever. I included your very concern at points throughout the essay. And tellingly, “ignored” was a word that you conjured. Not me.

          That constitutes my best comprehension of my own comments and yours as well. No snark included.

  • David:

    You are young enough not to have participated in the antiwar movement 45 years ago. I was. I was one of those singled out by COINTELPRO though the only “illegal acts” I ever advocated were activities protected by the First Amendment and I was actively opposed to people like The Weatherman (who I personally opposed to their faces). In 1978 I got a copy of my COINTELPRO file – heavily redacted, but still with sufficient information to “fill in the blanks” on a lot of strange events between 1966-73. I was pretty seriously fucked with, by the government, for the crime of opposing them.

    After 49 years of watching the government’s lies exposed, lie after lie after lie after lie, big and small – going back to August 4, 1964 when I had my eyes opened as a “fly on the wall” in the Admiral’s stateroom during the (alleged) Tonkin gulf (non) Incident, I am sorry but I no longer believe any of their bleatings of innocence. Quite frankly, I wouldn’t believe them if they told me it was Friday, without three different calendars for proof.

    I am personally surprised that a reporter with your background would buy the baloney.

    • You might want to reread the essay. I acknowledge the inevitability of overreach and authoritarian excess. I argue that the remedy for that is not to pretend that big-data doesn’t exist. It does. The remedy is to punish its misuse to quash dissent or target Americans for domestic activity.

      My age is an ad hominem. I had relatives caught up in COINTELPRO. I know of their travels. I also had a cousin hounded throughout his life because of his legal political associations. The ad hominem is not the point. Your reliance on it is weak stuff.

      Let me restate: Thus far, the fact that the government is maintaining a data base of all calls, for use as a retroactive asset in a campaign against terror that represents an actual geopolitical reality. The value of such a data-base to the interception of communication by terror organizations is apparent and demonstrable.

      The question is: Should we ackowledge the existence of the data, and allow it to be aided in the pursuit of actual suspects? No. Okay, then sell that to the American people, because right now it is legal. Or should we acknowledge that the data while of value to legitimate counterintelligence and anti-terror efforts, is also ripe for abuse by the government, and should we therefore try to ensure that the judicial oversight into its use is strong and independent. And should we react vehemently when we do discover a misuse of the data?

      That we don’t have enough civilian oversight of the FISA-court and its rulings is a given. And as I said, there are other overreaches right now that I find legally appalling. But shock and dismay at the government operating legally amid the reality of big data? And without a single salient example of that data’s misuse under the FISA-court orders?

      Sorry. I am personally surprised that you can read past all detail and nuance.

  • But the PRISM project on internet monitoring that the Washington Post broke would seem to pull all the actual content of emails and searches — the equivalent of listening in on calls.

    • And do what with it?

      Given that there are billions and billions of internet postings, is it conceivable that the government is going to go through it all to see what Americans are up to and then systematically use it to violate our privacy and persecute us? Maybe. But that’s a lot of manpower. Last I checked the FBI, only had 20,000 for all federal crime, counterintelligence and anti-terrorism efforts.

      Or is it more likely that they’re running the raw data through computer searches looking for specific phrases in Arabic or Farsi or whatever –as the NSA does overseas with electronic intercepts — and only getting interested when the computer flags certain phrases or connections with suspected entities. On the telephonic side, my guess is that they’re actually running only international calls on a computer run to begin with. And on the internet as well they’re looking for links to certain websites or certain connections.

      Can this become Big Brother? It already has, long ago. When you use the internet, you know you are sending information into the public ether. And yet because of the distances involved and the need for instantaneous communication, we disregard that public reality or accept it. Just as certain terroristic organizations do as well.

      At the point that you show me an FBI agent, or IRS agent, or intelligence officer using the mass of internet data to violate the privacy of Americans and/or target them, then we have a real scandal. Will it happen? Eventually. And then the rememdy will be to discover the overreach, punish the cop and his agency and prohibit such excess in the future. But pretending that the internet big-data isn’t there for someone to run a computer check for all the variable Arabic phrases for bomb and the numbers of airline flights is, I dunno, obliviousness? It’s there. And it’s a haystack. And as long as they’re searching for a legit needle, what do we really want to have happen here?

      It’s also invasive when they scan your body, make you empty your pockets and take off your shoes. But we do that for some reason. Might have something to do with the actual risks of someone bringing down an airplane.

      Everything is a balance. Nothing I’ve read in the Guardian or the Post has yet struck me as being out-of-whack with the reality here. It may well be that we are going there, or that we have gone there already. But at least show me the first fucking case of anyone in the government using the internet data stream to target anyone domestically. Then, I’ll be genuinely outraged. Not before.

    • Yeah, same here, David, I’ve been trying to make many of these same points to friends. The biggest angle to this is how self-serving it is to the media – who don’t understand the law or how it intersects with politics. The other weird thing about this “controversy” is that before yesterday, I assumed all of this was already going on and had for years. I don’t understand the surprise. Three years ago Dana Priest reporting in the WaPo that DHS had all these office parks and facilities in metro DC that weren’t on maps and tight security. I just assumed this was the security state growing up around us mostly out of site. How did these people who follow this kind of thing for a living just miss it?

      Anyway, good work.

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