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.


  • The way he frames the situation (NSA farming millions of phone calls, using software to disaggregate the data and find patterns, obtain court orders to monitor calls only after sufficient information is obtained of suspicious activity) makes it seem innocuous, but he fails to contextualize it.

    1) This was occurring in secret without even the pretense of transparency about the fact that the records were being obtained or how they were being used.
    2) This is being done by a government that has knowingly (and unwittingly, come to think of it) assassinated its own citizens and is pushing to utilize the technology involved in those killings in domestic surveillance and law enforcement.
    3) This is being done by a government that has successfully legislated the ability to arrest and detain indefinitely citizens ostensibly suspected of ties to terrorists but who have not been convicted or even charged with crimes.

    The author characterizes those who are appalled by this scandal as hysterical and paranoid conspiracy theorists but I would consider them simply capable of abstract thought. Let’s think for a moment that even if this in and of itself is not to bad, could it quite easily lead to some pretty bad things? Simon himself identifies the problems of this level of power without oversight: “When the Guardian [et al]… 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.”

    “Tricky”, indeed. Let me repeat one phrase from that quote for emphasis: “it probably will happen”. I, myself, am gonna go with a “Duh!” on that one.

    The thing that made me vicerally angry at the article, however, was this bit: “After all, we as a people, through our elected representatives, drafted and passed FISA and the Patriot Act and what has been done here.”

    Those who try to convince us, or worse actually believe themselves, that we shan’t complain about government edicts in a “democracy” because “we are the government” and therefore “how can we oppress ourselves?” or “we got what we asked for” or some such nonsense are the worst kind of statist bootlickers and rather than being summarily ignored I contend that they should be publicly ridiculed and shamed.

    The FISA scandal by itself may not seem that bad, but it is yet one more example of the federal government’s seemingly intentional campaign to burn through every amendment in the Bill of Rights. As federal judge Alex Kozinski aptly put it:

    “Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”

    • Attack the government overreach when and where it is actually occurring.

      And with regard to this data, accept that it was not “done in secret,” unless you want to acknowledge that all law enforcement requests for data in all cases are done with absolute confidentiality. Court orders for data, or wiretaps are not public documents. And even in non-national security cases, prosecutors and police do not have to reveal their court orders and subpeonas and wiretaps until well after all the relevant information has been first gleaned from those efforts.

      All three branches of our government — the judiciary, the legislative, and the executive — were aware of this continuing court order. Secret only means that you weren’t informed, but that of course is the precise nature of all such data intercepts in law enforcements. There may be a dozen long term wiretaps going on right now in your city, and another two dozen DNRs pulling numbers off of various phones, gathering information on various targets, and no one told you about those either.

      Can this data be misused by our government. Yes, and likely so. Draw the line there, at the misuse. And not at the proper use of a law enforcement asset that has a legitimate value for a societal good.

  • David –
    Thought provoking post and I agree with you on most points *but* you yourself miss how the paradigm has changed: with the power of big data, those “billions” of records are no longer inaccessible. In fact with the right data scientist they become crystal clear. Suddenly it does become script-kiddy easy for a rogue agent (or the gov itself) to pull enough incriminating data to blackmail anyone – even a future President.

    the Gov does not have a good reputation of reining itself in, and so it’s our job to realize that the landscape has changed. Privacy of commercial preferences and baby photos may be dead but there are areas where it must still be protected – and the misuse of data punished.

  • As someone who has made a good faith effort to understand at least the contours of what’s going on, I think this piece is poorly-argued at best.

    Consider, for example, this apology for this data collection: “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.”

    Can the author really fail to differentiate between collecting everyone’s records, and narrowly seeking specific approval to surveil a handful of people who have been specifically identified as suspects in a criminal investigation—and taking those requests one-by-one to a judge?

    That’s a lot like saying that the only difference between a bum with one dollar in his pocket and Warren Buffett is… scale. The first has only one dollar, the other several billion. See, it’s just a matter of scale.

    The rest of this article contains several other failures of analysis.

    The author suggests, for example, that there is no reason to be concerned about the collection of every single phone record in the country because they are not actually listening to the calls, just collecting phone numbers. (At least, not listening until they feel they need to; there is some reason to believe that the content of a vast number of calls is recorded, and listened to on a secretly-defined “need to know” basis.)

    He believes it’s OK because hey, we’re assured that these tools will only be used against terrorists. This assurance is accepted at face value because (A) we were attacked, and (B) despite the government’s reluctance to even acknowledge the existence of these spying programs, let alone disclose the legal bases and safeguards which supposedly prevent against their abuse.

    Can the author really be so unconcerned about the potential abuse of this practice? Does he have so much faith in humanity that he cannot imagine any bureaucrat or future despot misusing the data? The potential both for simple mistakes, and for more malicious blackmail (say, of dissidents or political opponents) is enormous.

    … Not to mention that to the extent the calls have location data attached, as has been reported by some, this can be used to create a map of the movements of every American. And not to mention that since we can’t even know the rudiments of the program’s operation, based in some extremely broad claims of security secretism, we can’t actually assess to what other unintended purposes this data might be put.

    Or that, coupled with the revelations about the NSA having unfettered access to the servers of all the major email/social media companies, the government’s ability to profile and investigate and potentially blackmail every single American is now colossal.

    I won’t trot out the famous Ben Franklin line, which has been deployed plenty in this context, but boy did that Philadelphian have his head on straight.

    • You failed to grasp the legal analogy. Completely.

      The surveillance in Baltimore wasn’t directed at a handful of suspects, it captured the calling data from thousands of innocent people. And courts determined that this was not a sufficient intrusion to prevent detectives from using DNRs on the payphones. That is an actual and precise microcosm of the current issue.

      In Baltimore, they had no specific suspects, but suspected activity. They had the payphones. They monitored those, despite being intrusive on the privacy of thousands of innocent Americans. It was legal.

      Now, we have no specific suspects, but suspected activity. We have the phone data. They want to monitor those, despite being intrusive on millions of Americans. It is legal.

      • I grasped your legal analogy. Completely.

        I just find it unconvincing. Completely.

      • Mobile phones are all-encompassing. A vast majority of Americans have one. Payphones where suspected illegal activity occurred.

        Should Baltimore police be allowed to monitor every payphone in Baltimore for patterns that they deem to be that of a drug suspect? No, they targeted the location due to its high-risk, and they were authorized to do so because the situation was sandboxed.

        • Well, payphones were far more commonplace in 1983-84 than now. And they were often the basic communication device of the urban poor.

          So what you have effectively said here is, hey, we all use cellphones and we don’t want to be subject to anyone gathering up our call histories. But if you’re relying on a pay phone to convey your personal business, what the hell…

      • The pay phone monitoring is a very flawed analogy. The proper analogy to what has been revealed about NSA data collection would be if Baltimore had tried to monitor suspected activity not just by monitoring certain pay phones, but every pay phone in the city. And also every home phone in the city. And also keeping a record of every piece of mail sent in the city. And also keeping a record of every book checked out from every library in the city.

        The whole scandal, summed up in the line you criticize Greenwald for, is that the program is “indiscriminate and sweeping.” In the pay phone example, the city is at least attempting to target criminals–the NSA is targeting everyone, and surveiling everything in order to do so.

        • We will disagree. I addressed your point elsewhere. If you search the comments, you’ll find it repeatedly. But differing opinions on such points make a horse race.

  • Much like many (most?) of the other commenters, I think you “bury the lede” and miss the point.

    You write:

    “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 is the case with all law enforcement capability, it will certainly happen at some point, if it hasn’t already.”

    Having seen the government coordinate a crackdown on Occupy, having seen the government infiltrate even pacifist activist groups, having seen the government attack whistleblowers and the press, there is far more reason to suspect the data IS being abused than to think it isn’t.

    This data collection is occurring within a context in which whistleblowers are being subjected to harsh prosecutions; the government is both maximizing its ability to spy on us while minimizing our ability to know how it is using this information. Their mantra is, “Trust us. We are doing this for your own good.” But they haven’t earned our trust.

    And it’s worse than that. The lesson of the Obama administration is that even when a previous administration demonstrably and illegally abuses its power–violating the UN Convention Against Torture, for example–the perpetrators are given a free pass. The only person in jail related to torture is John Kiriakou, who is a whistleblower.

    So the government has the massive ability to gather data and spy on us. And the officials of this government no longer have any need to fear legal accountability for abusing their power. And you think this is much ado about nothing?

    Your counter-arguments strike mas a two-fold. First, that what has been revealed is legal and not intrusive. Second, that terrorism is such a scary, existential threat that almost anything is justified to avert it. My counter-argument to the former is that legality and accountability ave become so compromised and corrupted in this country that the threshold for trusting officials on issues such as these is tremendously high if not exactly non-existent at this point. As to the latter, the response is two-fold. First, that 100s of millions of us in this country are crazy to be going about our day to day business fearing terrorists. And second, and most important, if the government was seriously interested in reducing the threat of terrorism, it should cease its wars on the Muslim world first before building the infrastructure of a totalitarian police state here at home. Let them try that first and see how that works before decimating the Fourth Amendment.

    • Well, I buried your lede. My lede was about the specifics of this data, and this court order, and its legitimate usefulness to counter-terrorism as weighed against the actual intrusion on civil liberties.

      But yes, if you want to shape that into a greater discussion of all else and make that the lede…

      • No, your lede, as evidenced by the title of your post, was that the folks who are concerned and upset–like Glenn Greenwald–are hyper-ventilating. And then you take a very narrow, legalistic approach to making your argument.

        And my reply is that all this occurs within a context–and this is my lede–of a legal system (sic) that lacks all accountability in dealing with abuses of power. That has been amply demonstrated by events of the past dozen years. Who has been prosecuted from the Bush administration for abusing power? Nobody. So what fear of accountability would inhibit any official from abusing power? None.

        You acknowledge that it will be abused. You seem to pin your hopes for dealing with that abuse–which you don’t think these latest revelations are–on a Church Committee of the future. But the Church Committee followed on a decade and a half of intense and radical activism and the Watergate crisis.

        Many of the revelations that led to the 1970’s reforms were the result of investigative journalism and the heroism of whistleblowers. But our current government–this putatively liberal Democratic government, I might add–has adopted an unprecedented repressive stance against whistleblowers and is treading in dangerous waters regarding the press.

        You want a narrow discussion on a broad issue and you want to disregard the historical context–a breakdown in official accountability–in which these revelations have occurred. That’s my take.

        • I can agree with a good many of your assessments as to the state of our democracy. And yet I believe that attempting to assert for civil liberties and to oppose government overreach is better accomplished by targeting actual and evidenced affronts to civil liberties. Guantanamo. The lack of judicial review in drone strikes against citizens. The affront to press freedoms and the threats to whistleblowers.

          These are, indeed, actual authoritarian excesses currently in play. Focus your outrage there.

          This? This is a court order for data that has a legitimate purpose for legitimate counter-intelligence. Can that data also be misused? Definitely. And knowing this government — as we know all governments and their capacity for overreach — it will at points be misused. And then, at that point, you attack not the proper use of the data — which is a neutral asset — but the improper use. The data is the new world. Pretending it doesn’t exist won’t last you through the next terrorist attack, when the first witness at the first congressional hearing explains what might have been accomplished had we used our technological capability. Focus on the actual affronts to civil liberties, and not the conspiracy theories of what you think might happen. There is plenty of overreach already on which to make a real case.

        • “But our current government–this putatively liberal Democratic government, I might add–has adopted an unprecedented repressive stance against whistleblowers and is treading in dangerous waters regarding the press.” – Hankster

          What Liberal government? We’ve had nothing but Center Right and Hard Right since at least Ford. Reagan just put the sociopathic pro-Fascist ideology into overdrive. So to try to pin the overtly Conservative actions of the Center Right Obama Administration is inaccurate and laughable at best.

          The day we get a true Liberal Administration running the White House and Congress is the day Conservatives have a meltdown. In our current environment, anything Left of Pinochet is considered pure Marxism.

          • In response to Brian Dzyak:

            That’s why I used the word “putatively.” Do I think this is a liberal administration? No, but I would suggest that it is commonly seen by most people as one. Unfortunately, I think it is reflective of what liberalism as a political practice had become. See Chris Hedges on that. If you are asking do I think this administration has abandoned what made liberalism a creditable political philosophy in this country, I would agree.

            I don’t know that I would characterize Reagan as fascist. I think plain old corporate-oriented conservativism is distasteful enough. I was in my 20s and 30s during the Reagan administration. Much as I couldn’t stand it, I don’t recall gangs of toughs breaking up the meetings of liberals and leftists.

      • You bow your head and accept the surveillance state because “it is legal”. You are a true patriot

        • I accept this particular act of electronic surveillance not merely because it is legal, but because I think it a legitimate tool in the law enforcement arsenal and i think that it doesn’t present more than a modest affront to individual privacy and civil rights. There are other surveillances and other government overreach that I by no means accept.

          It is disappointing that you would overreach, mischaracterize my arguments, and then culminate in an ad hominem sneer. I have a little more ambition for this website, which is why I’ve stuck around to engage with everybody. Even you, given your tone.

  • David,
    Sadly, Americans are accustomed to the merciless and indecent WOT and criminal justice system meat grinder policies being applied to a class of individuals that they view as suspect. Now, without request, hundreds of millions of these citizens are being introduced to this system of guilty until proven innocent. Citizens acknowledged and acquiesced to civil liberty abuses that for so long as long as they were contained to the Other, but now the reality of uninvited and creeping surveillance into the privacy of their homes has struck a nerve amongst the public. Thus, the visceral reaction amongst an increasingly powerless public is apparent. However, when torture and US citizen assassination by drone is tolerated, I highly doubt the legality of this NSA program will be meaningfully challenged.

    When the inevitable abuses of these NSA powers are disclosed, will anyone in power be held accountable? With state sanctioned murderers, torturers, and obscene Wall Street fraud going unpunished, accountability for the powerful is a rare commodity. Security state moral hazard is interpreted as charges only being filed against token scapegoats when the US government is embarrassed or shamed by its activities. Ideally the political pendulum will swing back to convene a modern day Church Committee, but as these WOT policies become normalized with bipartisan approval, the rot is more difficult to remove and the trust deficit grows.

    When US citizens sue the DOJ for 4th amendment abuses, federal courts are often times quick to toss a case once the Obama administration claims state secret exemptions. Unlike a county criminal case, the monitoring is never revealed after the fact and Plaintiffs are forced to prove a negative. The FISA courts, while better than nothing, are a rubber stamp and formality for the DOJ. If regulatory capture infects agencies that work in the light of day, such as the SEC, to the point where they barely resemble an oversight body entrusted to carry out their mission, what hope is there for meaningful oversight from a secret national security body operating during unending war when the word terrorism is being thrown about? Better to prohibit dangerous and unnecessary activities than to hope those lurking Cheneys and Nixons never again wield the levers of power. Accountability, oversight, and transparency are sounding quaint.

  • […] “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”. From : http://davidsimon.com/we-are-shocked-shocked/ […]

  • Hi David, I have a serious question, could you please define what you mean by “terrorism”? Do you mean Salafi Sunni terrorists like the ones the US and its allies (Qatar, SA and Turkey) and are currently arming in Syria, which will probably result in blowback against the US? Or do you mean homegrown, domestic terrorists like Timothy McVeigh? Or do you mean phony “terror” plots like the FBI entrapment cases? None of these pose an existential threat to the US. I believe the onus is on you to show that any of these pose a substantial threat to the existence of the US. And all could be combated in a much more reasonable way than constantly vacuuming up the phone data for every person in the US, with normal police work by the FBI, which also could have prevented the 9/11 attacks according to Colleen Rowley (who I believe was in a position to know). It seems to me that all this collection of data will actually make it harder to prevent these attacks by putting the focus on computers instead of real investigative police work.

    • Try deconstructing terrorism with such callowness for the folks who fell from those windows in Manhattan, or the legless folks in Boston.

      The onus is on you, my friend, to justify this attempt to rationalize away the fundamental reality of the world in which we live. The fact that American foreign policy has been at many points amoral or destructive, or that some terror comes from rightist Americans, or that some — not all — of the federal prosecutions for attempted terror plots might be more manufacture than not — doesn’t obviate the reality of actual threat.

      There are civil liberties that need to remain inviolate regardless of the threat, I agree. But demanding that law enforcement pretend that a data base doesn’t exist for tracking telephonic connections between actual overseas terror groups and operant elements in this country isn’t a serious affront to those liberties, in my opinion. And the lengths to which you just went to pretend that no one is trying to kill Americans, or that government has no legitimate response to that reality, is, to me, intellectually dishonest.

      • Hi David, sorry if my question seemed flippant or callow, tone is hard to read over the internet but it’s an honest question that you didn’t answer. What kind of terrorism should we be worried about from which foreign groups, Al Qaeda (which Al Qaeda, AQAP, AQI, AQIM?), Hezbullah, Hamas, the Mujahadeen-E-Khalq, Tamil separatists? These are all very different groups with very different ideologies some of which wish to kill Americans and some of which do not. Your justification of this program is based on the notion that there are “people who are trying to kill Americans” but until we define who exactly we are talking about, how do we know how to prevent them?

        I live in New York and was really shaken by the 9/11 attacks and I’ve actually done a lot of reading to try to understand the “fundamental realities” of the world I live in, which honestly I wasn’t very aware of before 9/11. So I’m curious to know what you believe are these “fundamental realities.” If they are so fundamental they should be really easy to articulate more specifically than just saying “people who want to kill Americans.”

        • For purposes of American law enforcement, the kind that wishes to kill Americans is sufficient. Or more explicitly, American civilians.

          I won’t deconstruct terrorism to the point of suggesting that it is anything other than an illegitimate and sociopathic response by any aggrieved group, regardless of how meaningful or just their claims might be. It is one thing to understand the origins of the claims and grievances and to attempt to address those independently. Nothing I write here argues against that. But killing random human beings as a means of asserting such claims can be divorced entirely from all legitimacy.

          • So you can’t even name one group by name. Maybe you should just stick to talking about Baltimore, which you actually know something about.

            • Really? Because I won’t limit my definition of potential targets to a specific list, you are claiming what? Ignorance on my part? Or the non-existence of political entities that deal in terror globally? Really?

              And apparently, I made no mistake as to your tone.

              • It seems to me that yes, the threat of “terrorism” has been greatly exaggerated, but also that the term “terrorists” has been made so broad that it is important to define what groups specifically one is concerned with. By its own admission this NSA program would not prevent attacks by homegrown groups, so it must not consider that a sufficient threat. Obviously there are groups that deal in global terror but I think that we should be very clear about which groups actually pose a threat to US civilians and what the extent of that threat is. You don’t seem willing to do that, instead preferring to keep these terms unbelievably vague, so one would not even know if the NSA’s program would prevent the attacks that you are so afraid of. I can’t read your mind so I don’t know if you are doing this out of ignorance. Last I heard AQ is like 200 guys globally. And a lot of the leadership has been killed by drones. Doesn’t really seem like anything to be afraid of or give up my civil liberties over. If you can point out a specific group that I should be afraid of then I can research them and come to an informed decision about the threat they pose. Until you do that, I don’t know why I should take your position seriously, because it seems to be based on an unsupported premise. I’m more likely to slip in the bathtub than to be killed by foreign terrorists.

                • Are you suggesting that only those card-carrying members of established, voted-into-the-official-club terrorist organizations are eligible for identification and proactive investigation. That’s just silly. If an American resident travels to Central Asia, say, and is picked up by another nation’s intelligence service discussing jihad or expressing interest in radicalized, militant Islam, I’d like it if that information came back to our intelligence agencies and law enforcement.

                  And if that fellow has a phone, I’d like to glean the number. And then, yes, I’d like to know who else he’s in contact with and why. And forensically, who has been in contact with over a past period of time. And going forward. That is proactive police work. And this data has a purpose with regard to that scenario.

                  And everything you just wrote about some formalized litany of official, major-league terror groups is utterly, ridiculously irrelevant to the increasingly diffuse reality here.

              • Obviously I’m not as worried about the threat of a potential terrorist attack as you are, David. I think the Patriot Act should be repealed at this point, almost 12 years after the 9/11 attacks, and the massive domestic NSA data collection should end. This story seems to have brought the sham FISA court to the public’s attention, which I think is a good thing. But I appreciate you engaging here in the comments, even given my occasional snark.

      • I’m momentarily forgetting my high school Latin teacher’s lessons in rhetorical devices; those lessons were 30 years ago. But whatever the proper term of art, Mr. Simon’s “tell it to the folks who had to jump from the tower” line of argument is not one of the more convincing rhetorical devices. It’s an raw appeal to emotion that dodges the complex substance of the argument and shuts down debate. (And yeah, I lived in NYC in the 1990s and still have tons of family there; I called my grandmother in a panic on the morning of 9/11 to check on her, and miraculously got through on a landline.)

        But if one is going to advance such arguments, I wonder what the author thinks is the appropriate governmental response to 30,000 Americans being killed by firearms every year.

        Should the government not—under the logic of this piece—be actively surveilling all gun owners? Should they not be invasively checking not just their phone records and internet usage, but actually sneaking into their homes to make sure their guns are secure?

        After all, 30,000 is roughly ten times the number of folks who died, (appallingly, and dramatically) in the Towers. And those body counts are repeated every single year.

        Now, if the author’s answer is no, then I would be tempted to say: “Tell it to the 4-year-old shot accidentally shot the head by their 13-year-old sibling.”

        See how that works?

        • It would be the “appeal to pity.” I forget the Latin, too.

          But that actually isn’t the purpose of the statement. There are arguments in these comments that go so far as to suggest that there is little or no actual terror threat with which we are contesting, or that it has been hyped in order for the government to purposely destroy our civil liberties. Ergo, my citing the actual victims of terror is, in response, a reality check. It is saying, no, there are people in the world who, given opportunity and circumstance, will actually kill and maim random Americans. If you think any retreat on civil liberties is unreasonable regardless of the threat, or you think the threat is insufficient for a given retreat, then you can make a legitimate argument. If you try to claim that the threat is minimal or non-existent, or worse, manufactured by a government cynically poised to use fear itself to devour democracy, it is entirely legitimate to point to actual casualties.

          You may not like it. But it is not a fallacy of logic.

          I gotta lotta love for the Aristotlean fallacies of rhetoric. My favorite coursework ever.

  • “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?”

    I would quibble with this point. Voice recognition software means transcribing audio could be automated.

    The security/freedom balance debate is good to have in this instance as a political issue, even if it doesn’t rise to the level of illegality.

    If they are targeting everyone, do we have a legal right to know these dragnets exist? Or as a political matter, should our leaders have been more transparent about its existence? If it’s a secret what capabilities are being employed, it’s hard to have a political discussion about them. Remember Obama campaigned against this sort of thing before he was elected.

    • Jose, my brother.

      Until there is a wiretap, with a Title III signed by a judge against a specific target, with specific probable cause, there isn’t any audio. They’re capturing metadata — what number called what number, from where, and for what duration. That’s all.

      If they are listening to anyone, they presented probable cause to a federal judge for that target specifically.

    • “Voice recognition software means transcribing audio could be automated.”

      Doesn’t work in the real world most of the time.

      Here is an example of an automated transcription provided by ABC News. Needless to say, it doesn’t reflect anything that Michelle Obama actually said at Bowie State Commencement:
      “Okay. Okay. Okay.
      — — — didn’t stay. — — — — — — — — And — — news. — — And it helps us.
      Everything okay yeah. Yeah. Yeah yeah.
      Me. — — okay. Yeah.
      It’s okay. OK. Yeah.
      Do you yeah. And I had. And yeah.
      — — at all. Yeah yeah yeah. And — — Okay.
      Yeah okay. OK. — Okay.
      It. — — — — Yeah. Yeah.
      We believe. — — news. Yeah.
      Anything. Okay. Okay.
      You can. Yeah. Its.
      — — It’s okay. Yeah okay. — school it’s.
      Easy time. Yeah. — yeah.
      Yeah. Get me off its. Yeah.
      It’s. Yeah. — And and he just within headaches.
      Yeah. Is — any time it’s. And yeah.
      Yeah yeah. — — — This — and it yeah. Yeah.
      — — issues. All news conferences. Won’t she goodness.
      — — — — Yeah. It’s — news. Yeah.
      Seeing. Will. All the money.
      And yes. It’s. Yeah.
      Its purpose. Was OK. Dinner only eating.
      This 88. Okay. — — — — — — — — it’s cool yeah.
      Yeah yeah. CE. Movies.
      Let’s. The — yeah. Yeah yeah.
      It’s. — sure yeah. We’ll.
      On its. Yeah. Yeah.
      It didn’t believe I have behind yeah. Yeah — yeah. — — — It’s.
      … [more nonsense]…
      This transcript has been automatically generated and may not be 100% accurate.”

      • Heh.

        But is it at all possible the NSA has better transcription software than ABC News?

        (I worked for ABC News in Manhattan years ago, and my suspicion is the answer to that question is: Oh my, yes.)

  • What is disturbing and distorting in all this is the new philosophy (governmental and otherwise), that we are all potential criminals now. There is no longer an assumption of innocence, but a complete presumption that somewhere, out there, an American is doing something that will threaten the planet and that person must be found, whatever the cost. We will hold each other hostage, without warrant, because Suspicion is Everything. Guantanamo exists for this very reason. Someone in that prison knows Something or is Associated to Something and if we can obtain the data in that Someone’s head, we will all be safer.

    Let’s kill as many Bad Guys as we can, because, you know, if you kill them all, then Bad Guys will never exist again. We couldn’t possibly be perpetuating a negative way of life this way, could we?

    There are some things we cannot control and this kind of governmental and even philosophical action implies that yes, everything can be controlled, even human behavior on a global scale. No one really has to do anything, just imply and your job is done. People will always suspect they are being spied on or surveilled in some fashion (cameras are everywhere, you know) and this is also a form of ‘crowd control.’ With a population so large, you cannot reasonably rely on just the abusive nature of police to keep the little people frightened of a traffic ticket and therefore, kept in line. Ever been to Disneyland and watched a heckler suddenly disappear from the crowd? It is done with little fuss, but it is done effectively. Don’t want to upset the other paying customers. We know this is all good for us, of course. We all want a peaceful, if slightly paranoid time, jostling through this crowded life, on our way to Tomorrowland. That’s where the fun is.

    Arguing the semantics isn’t the issue. It is the state of decay in our society as a whole that is truly ‘problematic.’ Instead of working toward a future where other governments are left alone to decide their own fates, where we are not selling arms to the highest bidder, where we are not selling our collective souls for Chinese credit, abusing poor tax payers so the wealthy can keep their condos while your foreclosed house rots in a dead neighborhood, instead of creating armies of enemies wherever we go, just so capitalism can prevail, we are wriggling down that slippery slope where My Country Right or Wrong prevails – even if My Country no longer has a concept of decency about itself or how to treat others with anything resembling respect and the ability to self-determine. You cannot trust others with this. They may attack you. Catch-22 isn’t good enough for this.

    No, what matters is we are all little children who cannot understand what Daddy is trying to do for us, to keep us safe and its best that we never know, much less question Daddy because that would defeat the purpose. We must not change. We must always be wary. We must always deal in partial-truths and manipulation and we must never, ever imagine that life could be any different. We require governance and this is what governance is.

    And when there is no longer a single penny that can go forward to allowing anyone but the wealthiest the best education, the best tools to enhance real intelligence, the diminishing of our culture, of Art, of expression and the hope of discovery and self-determination, when all the taxpayer’s worth is simply boiled down to feeding the overwrought machine of Protection, what, exactly, is worth protecting?

    Call a spade a spade: the actions of the NSA or the CIA or the FBI aren’t about what is best for all citizens or even the world in general, but about what is best for those in Charge. You know, the ones whose business interests and political manipulations and warmongering and GREED got us into this mess.

    Understand that THIS is why people are really angry and yes, even ‘hysterical’ about. Our government protects itself and its allies. Not its people.

    • That’s a lot.

      And I agree that government overreach needs to be countered in many meaningful ways. And I have said so in the original post and throughout these comments. I just don’t believe that denying law enforcement the limited, proscribed use of a data base that has clear and obvious benefit to counter-terror efforts is one of those ways.

    • This is right. It’s strictly to protect the careers and business of the already enriched. It’s to control the politics. It’s to weed out dissent. If as Mr. Simon suggests this is SOP, then why is it classified? Why is Bradley Manning being tortured? Why have whistleblowers been bullied, demonized, targeted? Does anyone with half a developed prefrontal cortex believe it’s to protect the normal citizen?

  • Unbelievable the amount of naivety, ignorance, and propaganda that has followed what is nothing but a shell game.

    Read this: If you are under ANY delusion that the NSA and other global entities are not mining and databasing every single electronic communication 24 hours a day, 7 days a week….you need to wake up.

    The fact that this story is even allowed in the public arena is a joke. Behinds the scenes it is well known that all electronic communication is collected. No, not listened to. But collected. Nothing is private, and all is accessible by entities that have 100% absolutely no right to access it. It has been going on for a long time, and will continue indefinitely into the future. No amount of media coverage, or fake, posing Senators can have any impact. Only true public outcry and indignation (the kind that lasts more than 24 hours before being replaced by football) could ever have a a chance of exposing the truth.

  • ” Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.”
    This was used as a motto on the title page of An Historical Review of the Constitution and Government of Pennsylvania. (1759); the book was published by Benjamin Franklin; its author was Richard Jackson, but Franklin did claim responsibility for some small excerpts that were used in it.

    • We all know the quote. I have used it on government intrusions of substance.

      The problem here is that you think allowing law enforcement to use, in a limited and proscribed way, a data base of clear and obvious benefit to proactive counter-terrorism efforts is a loss of essential liberty. I do not. I can name dozens of other instances in which the overreach of my government deserves the Franklin quote. But not here. And not this.

  • Of course the government is not listening in on 300+ million people, but what about the next step, when it becomes the norm to mesh your brain with a computer interface, worse still imagine that they already have the ability to hack into your brain and not just listen in but inject thoughts, feelings, etc. ?

    [Think Being John Malkovich.]

  • Another thing to consider is what foreign investors might think about all this. What people around the world might think before they use Facebook or Twitter or Gmail.

    How does a foreign company with proprietary technology now feel about doing business in the US? There is an economic sanction that results from our government sniffing all packets. If we don’t recognize the 4th Amendment anymore, then we don’t recognize the authority of the Constitution. I don’t like typing the word “constitution” because it’s been so awfully co-opted by tea freaks and similar. But it does say that we are to have some modicum of privacy.

    In broader terms, the spirit of America is that we should endure some level of risk to enjoy our freedom and privacy. The NSA PRISM program militates against that.

    • Yes, by all means let’s worry about what capital will think. Jesus, I know we couldn’t go for very long merely weighing the privacy rights of citizens against the need to counter a threat to national security. Enough about liberty and responsibility and all that. What about the money?

  • It’s striking that you could master such a powerful critique to the war on drugs and, when it comes to the war on terror, your arguments are all in that framework, without any critique.

    • Yes, well, perhaps there is some substantive difference between the actual goals of our drug prohibition and the actual goals of our counter-terrorism effort. Certainly, there are some legless citizens in Boston who might believe such.

      • Then, might I be the one to ask, how come the bombs in Boston were allowed to go off? No system is perfect, so a few incidents might slip through the cracks. The Boston bombs might be the ones we failed to stop, but in looking at the list of Failed Terrorist Threats since 9/11 90% of them are due to the “Real Police Work” like walking the streets and interacting with the citizens of our nation.

        The FBI has infiltrated plenty of cells and captured or arrested plenty of people that have wanted to do harm to this country, but it is because they’ve drop down and talked to people, asked around and investigated potential threats, not build a gigantic database of everyone and assume 1% will be guilty of terrorism in the future.

        I really want to respect your opinion here, but it’s really difficult when you keep asking “what about the leg-less in Boston!?!?”. It’s nothing more than “What about the Children!?!?”, and it does nothing to protect us.

        • Ridiculous. Sorry.

          Yes, no system is perfect.

          By your logic all that TSA hardware at the airports can come down and we can stop with the body scans and searches. Can’t catch ’em all forever. So why bother.

          • That’s not even close to what I implied.

            In April 2009 the British arrested several known terrorists and gleaned form one of their computers an email address (an, one, single) which they put on a watchlist because it was assumed to be an al-Qaeda operative in Pakistan.

            Sometime around June 2009, that email address started talking to an Afghan-American, whom was subsequently put under watch. That person ended up being Najibullah Zazi, who had intended to blow up NYC subways.

            This is also the same case that the NSA is currently spouting as a successful use of their overly-broad surveillance. The NSA does not need to siphon the metadata from all communications of every American. They need to go talk to the Afghan, Pakistani, Iraqi, and Saudi communities. They need to do Police Work, not some covert secret-law take-everything-in-hopes-of-finding-something program. I have no issue with the NSA, FBI or CIA taking communications metadata from people associated with the things we’re waging war on, but they should not be taking the same data from everyone in hopes of somehow piecing an association graph together. There is no proof that this data siphoning has done, or can do, anything to stop terrorism.

            Though, it is through this program that we learned David Petraeus was cheating on his wife… I guess it is useful.

            It was your show, The Wire, that had obvious subtexts of the agony of police work at desks compared to “walking the beat”. This is not real police work, it’s a fishing expedition in hopes of doing something. Real police work would be investigating people who have known associations with terrorism, drugs, or whatever on the street and disconnected from people that have no association to them.

            • I admire police work as you do. And even in my original post, it is indeed my supposition, that it will be real police work overseas that identifies a legitimate target and, perhaps, a relevant telephonic device. The question then, if you are being honest, is this: Do you want to give domestic law enforcement and counter-terror agents here the maximized capability of searching rapidly for connections between that original target and co-conspirators here? Or not?

              No, I understand the limitations of this data, just as I understand the capacity for its misuse. But you aren’t being wholly honest if you don’t acknowledge that the ability to trace contacts between a genuine target and stateside co-conspirators through a forensic examination of calling data is a law enforcement asset.

  • “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.”

    This doesn’t follow at all. The indiscriminate collection of everyone’s electronic communications data is perfectly compatible with snooping on and violating the civil rights of individuals or groups. In fact it makes it all the more likely to occur, not less, because there are fewer technical and administrative obstacles to abuse taking place.

    The analogy with the Baltimore investigation is also flawed, because in that case the investigation was finite with specific intended outcomes. The so-called “war on terror” is by its very nature open-ended, with goals which are open to interpretation by political leaders who increasingly treat the idea of public accountability with contempt.

    • Disagree. The Baltimore case was not finite.

      In microcosm, it presents the precise legal analogy. A vast number of citizens uninvolved in criminality or, more precisely, not involved in the criminality under investigation by police, were using a communication medium and had legitimate expectations of privacy. The courts allowed the retention and analysis of all call data from the phones and then, when detectives identified specific targets, they allowed wiretapping of those specific targets only. In the present matter, a vast number of Americans have made a vast number of phone calls, and a court has allowed the retention and analysis of all call data. Then, if federal agents, identify specific targets, wiretapping will be allowed of specific targets only.

      The scope is larger. But the legal standard and legal principle — and the measure between privacy rights and investigative needs — is precisely the same.

      • It’s not a “precise legal analogy” because public payphones used by many people and privately owned cellphones registered to one person are not precisely analogous. Do you think the judge in question would have been just as happy to issue an order allowing the collection of “metadata” from every home landline phone in Baltimore if so asked by the police? I’m not a judge, sorry to say, but they feel like qualitatively different requests to me, which hurts your analogy.

        • Actually, the expectations of privacy on all kinds of phones are minimal because while the phone user has certain expectations of privacy, the phone carrier they use and share data with — the so-called third party — is not in the same legal category. Those pay phones were the legal equal of any other telephonic device. The legal expectation of a caller for privacy was the same when they picked up one of those phones as if the phone was their own.

          The issue of Baltimore detectives dropping DNRs on all the phones even in a smaller geographic area of Baltimore never came up that I knew about. Why? Because the BPD barely had enough manpower to identify more than a handful of phones and analyze even that much caller data. A few dozen DNRs and a half dozen tapped phones would have wrecked the entire CID budget after three months.

  • I just saw this post and realize I must be missing something and must be confused. It sure seems like either the government is collecting more than metadata or the Guardian is misled or misleading.

    According to the Guardian, they have powerpoint slides of the collection data (http://www.guardian.co.uk/world/2013/jun/06/us-tech-giants-nsa-data), the PRISM program allows for the collection of data that is far beyond metadata without individualized court orders:

    A chart prepared by the NSA, contained within the top-secret document obtained by the Guardian, underscores the breadth of the data it is able to obtain: email, video and voice chat, videos, photos, voice-over-IP (Skype, for example) chats, file transfers, social networking details, and more.


    The Prism program allows the NSA, the world’s largest surveillance organisation, to obtain targeted communications without having to request them from the service providers and without having to obtain individual court orders.


    “Fisa was broken because it provided privacy protections to people who were not entitled to them,” the presentation claimed. “It took a Fisa court order to collect on foreigners overseas who were communicating with other foreigners overseas simply because the government was collecting off a wire in the United States. There were too many email accounts to be practical to seek Fisas for all.”

    The new measures introduced in the FAA redefines “electronic surveillance” to exclude anyone “reasonably believed” to be outside the USA – a technical change which reduces the bar to initiating surveillance.

    This seems different from the situation you describe relating to wiretaps. I don’t yet understand what they are doing exactly but if the Guardian is correct, they are listening to the calls (or if you prefer, getting the video) and they are doing it without identifying any suspects. So long as they “reasonably believe” the person is outside the United States, they are able to listen. They would appear to be able to do this to United States citizens, so long as the citizen is in a foreign country.

    Thanks for your take but, again, I think I must be missing something.

    • You are missing this distinction:

      The FISA court order addressed in this blogpost is for call data and its content is limited to metadata. It is not for wiretaps on any Americans.

      PRISM is for internet material and it was first reported in the Washington Post. Obviously, internet postings offer content without the need for any warrant by the very nature of the material itself. But there are far less expectations or legal rights to privacy for stuff posted on the internet then telephonic communications. That’s just so. If you post something on the internet or send email, it is much more in the public domain.

      I don’t have any great problem with the FISA court order. With PRISM, I certainly expect law enforcement and counter-terror to avail itself of what is accessible under the law to them from the web. That said, I think it entirely arguable that the legal standards for the privacy of personal communications such as emails ought to be enhanced, commensurate with that of regular mail, perhaps.

      Which is a matter for Congress.

      • Well, thanks for making the distinction between the FISA order and PRISM clear. but I don’t buy the “just so” nature of the difference between e-mail and telephonic communications. After a brief look, it appears that some members of the judiciary agree with me (http://en.wikipedia.org/wiki/United_States_v._Warshak – full decision linked on right).

        In short, it might not be a matter for a congress because the practice of snooping on e-mail without a warrant is already violating the 4th Amendment. I haven’t been able to find any information that suggests the Supreme Court has ruled differently.

        If you only want to deal with the FISA order, fine. You’re the author of the post, that’s your prerogative and the initial misreading of your post was mine. If you instead want to look at whether the NSA has violated the 4th Amendment, it seems to me they already have.

      • Will you PLEASE stop asserting that ALL this PRISM program collects is cell ‘metadata’?

        Right….. Until you make that fancy VOIP that goes out over the ‘internet’.


        • Of course, no, that was misstatement. And elsewhere throughout these comments I’ve made clear that the privacy restrictions on internet data pale in comparison with telephonic communication. By the very nature of the internet, once you have the data, you have content. I’ve said that elsewhere.

          Right now, however, PRISM operates in a universe in which internet content has markedly little expectation of privacy. If you post your information or communications there, you are doing so, essentially, in public. A fine argument can be made for legislative reform in that regard. But be clear as well that my post was about the Verizon data, as revealed by the FISA court order. I am arguing as to that metadata’s relevance to law enforcement and the legitimacy of its use in counter-terror.

  • I broadly agree with you on this. I also think it’s fair to assume that these “revelations” create a context for journalists to investigate the possible abuses. Can they find people imprisoned due to evidence obtained during electronic surveillance, but who maintain their innocence? Can they find the drunken FBI / NSA analyst in Mo’s Tavern boasting about reading the sexts of random people? In the light of these stories there will almost certainly be more journalistic vigilance towards abuses of the system.

    The other thing these stories emphasize for me is the Western world’s utter dependence on American “Big Data”. The Government says it is abiding by the principals of the fourth amendment when dealing with all this data, that Americans are not subjected to massive invasions of their electronic privacy without just cause being proven. The fourth doesn’t apply to the millions of law-abiding citizens of the UK, Germany, Australia, Canada etc. whose personal data also resides in US data centers. The Government response has drawn a clear rhetorical line between Americans and non-Americans, which for me raises the following questions. Is data relating to Americans really treated differently to that of foreigners? When it is housed in the same data-centers, can this distinction really be made at meta-level? What protections do the law-abiding citizens of the rest of the world have against unilateral actions against their persons by American Government agents?

    • Agree. I actually believe that there are at least certain residual protections inherent in how the government has always treated telephonic communications. I think the greater abuse will be with internet material as it is subject to less privacy protection and requires much less probable cause to access content.

      And yes, the misuses will, I hope, engender sanctions and standards. It is, as always, a pendulum.

  • ” 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? ”

    This argument, while solid in today’s time, will not hold in the near future. Sure intelligence agencies can’t sift through data as to identify each civilian on an individual level currently, but with the emergence of quantum computers that will be a foolish notion in a few years. With ever-increasing processing power, it is of even more concern that we vet these laws concerning technology. Science fiction quickly turns to science-fact.

    As for terrorism, most humans will self-harm themselves through other avenues before they ever fall victim to some boogeyman lunatic. As a normal guy I wonder how much money is invested in these programs? Can a man who lives an honest living ask his government to put as much enthusiasm as they do with this malarkey into healthcare, immigration, education and public infrastructure?

    No doubts that America isn’t the only country doing this and they need to keep up but just as we teach people how to learn, how to handle money, how to act in a social setting, we should be educating people on how to act accordingly in the digital age. There needs to be a sort of data-class for kids in the future that teaches them the implications of their sharing personal data. I think most people are understandably ignorant of the big data age. Can we blame The Guardian for assuming that most people aren’t huge nerds?

    Maybe it would be easier to not feel some sort of outrage if we weren’t constantly bombarded with our government’s ineptitude. Where is the silver lining in drones, spying, a recovery where the rich gained wealth while the poor fell deeper in the pits, increasing education cost, lack of QUALITY jobs being created, impasse on immigration reform, the existence of the 2013 GOP and on + on ?

  • The data collection is no big deal. If an abuse of the power this sort of thing grants occurs, we should punish it.

    Sorry, I don’t buy that. It’s a strictly reactive argument. The existence of a degree of power guarantees that an abuse of that power will occur. Once the abuse occurs, great, you might (for sufficiently small values of ‘might’) exact some retribution. But the abuse has already taken place. If you want to preclude the abuse in the first place, you need to prevent that arrogation of power in the first place. Which is specifically what we haven’t done.

    If you like, as you have here, you could plead cost/benefit: “Oh, this intelligence tool prevents attacks,” and might therefore be *worth* the inevitable abuses of power that will transpire as a result of the mere existence of the tool. Okay, potentially valid argument. But then you get into the whole problematic issue that the burden of proof always rests upon the positive claimant. If you assert that it has prevented attacks and is thereby worth it, then you need to provide evidence for that claim, which is pretty fucking impossible when every last aspect of the tool and its use is classified under the ostensible national security implications.

    Getting the facts right is a prerequisite of moral behavior. Given the secrecy, we are not able to have any degree of certainty that we have the facts right. Therefore we are incapable of making rational moral judgements regarding this tool. Therefore I cannot in good conscience countenance its use, or even its existence.

    You say “It’s legal! It’s got a judge who signed this piece of paper and everything!”

    I don’t care. The law ceased to be a barrier to abuse of power a long, long time ago. The law is actually a beacon which alerts us to where power is being abused.

    • Yes, well. By that logic any government that attempts to assert itself in any way on behalf of any utilitarian goal can and should be resisted. After all, it will eventually misuse whatever power it is granted. Congratulations, you have made an argument for liberty without responsibility. In the end, nothing viable or worthy is achieved without a balance between those two attributes.

      • No, by that logic secrecy should be avoided. If we have the information necessary to make valid moral judgements, then we can make accurates one and decide whether the cost/benefit tradeoff is worth it in any particular case. So in that sense, I’m agreeing with you that we need more transparency and oversight. But what we have doesn’t cut it, and the argument that abuses, if they occur, can be punished, so this isn’t a big deal, isn’t one I’m going to buy. We *don’t* have that information, abuses *don’t* get punished at a rate/severity to deter future abuses or compensate for ones that have already occurred, and you don’t have the evidence you need to to support claims of the benefits being worth it.

        And, no, since you bring up utilitarianism, I’m not a big fan of it. See the Aktion T4 programs for why; utilitarianism is a way to justify the most horrific moral crimes provided you merely convince yourself they’re all in the name of the greater good.

        • A lot of things have been used to justify horrific crimes.

          We murdered a lot of Chileans and East Timorese in the name of democracy for example. But running down democracy as a concept because some war criminal named Kissinger wraps his own evil in the term is scarcely an intelligent critique of democracy.

          Agree with you, again, about the need to open up FISA as much as practically possible.

          • You say we need to open up FISA, but how is that going to happen, and what are the implications if it doesn’t?

            If the discussion starts from the premise that this intelligence-gathering isn’t a big deal — that it’s presumptively benign, and that it’s not a significant privacy violation anyway — then where is the political will to bring about greater openness going to come from? And if we start from that premise, and we (predictably) fail to force any meaningful amount of transparency, why shouldn’t we just shrug our shoulders and trust the folks in charge?

            It’s not paranoia to proceed as if a massive, unaccountable, secret government surveillance program might be the site of some really unpalatable activity. It’s a sensible presumption grounded in ample historical precedent. And it’s also the pragmatic place to start, because starting from there is the only way we’re going to have any chance to bring about the disclosures that could tell us whether our fears are justified or not.

            If these programs are benign, let the folks behind them give us the information to make that judgment independently. If they’re unwilling to give us that data — and so far, they’ve been unwilling to give us ANY data — why shouldn’t we draw reasonable skeptical inferences from that fact?

            • You are right to worry about how unrelenting our government’s desire to operate in secret can be. I think it is that exaggerated secrecy that creates more controversy around even the legitimate work of the FISA court.

              Will it change? I reference the Church Committee, which is the origin of FISA, in fact, and which followed the Nixonian excesses. History is a pendulum, and periods of real reform follow periods of government overreach. There are already great excesses and abuses in the war on terror and the drug prohibition, and eventually there will be legitimate scandal, including very likely the misuse of this data we are discussing. And then with real outrage at real government misbehavior in the ether, the pendulum will have a real chance to swing. And indeed, there will be more affronts to civil rights than the misuse of this data base. Again, begin with the drones, by way of example.

              When the excesses become significant enough to engender widespread anger, then the window for reform will open. Just as when a legitimate national security threat presents itself, the government will seek additional powers.

              This is the reality of the dynamic. And it is in the continuing tension between liberty and responsibility that practical policy will be pursued. It will not be clean, or efficient, or without scandal or failure. It will be very much a representative democracy contending with real-world problems and conflicts. If we are lucky.

              • I agree with all of this, and it seems to me to point toward a weakness in your original analysis — or at least toward a reason why a lot of folks who generally agree with you on this stuff took issue with your post.

                Baltimore cops harvesting data from specific pay phones under the supervision of the regular courts is a fundamentally different beast from the NSA harvesting all of everyone’s telephonic data under a program authorized in secret that even senators who object to it are bound by law not to disclose publicly. It’s a different beast even if we concede that the kind of data being hoovered up is the same.

                The secrecy makes it different. The aims make it different. The power of the entities doing the work make it different. The lack of oversight and accountability make it different. It’s different in the way that a dictator hijacking and selling food shipments from NGOs that were intended for his people is different from a regular joe plucking an apple from a neighbor’s tree.

                Yes, what’s being collected by the snoops matters. But who is snooping on us also matters. Why they’re snooping on us matters. The scope of the snooping and the secrecy of the snooping and the controls that may or may not be in place on what data is collected and how it is collated and how long it is preserved and what purposes it may be put for — all of that stuff matters.

                This is rightly a scandal because it’s quantitatively and qualitatively different from the analogous programs that we’ve been previously permitted to learn existed.

                • It wasn’t different to the privacy rights of individual Americans who used those pay phones legitimately.

                  The example is a correct legal microcosm of the current issue.

                  • Well yeah, even in that narrow sense it’s different, because this case involves the collection of a wider and deeper pool of data on the individuals surveilled. And by a more powerful governmental entity. In secret. With fewer institutional constraints on the use of the data, and so on.

                    I get what you’re saying, that this particular law enforcement technique isn’t entirely novel. I understand that. And I certainly agree that some of the precedents have been poorly explained (and understood) in some media accounts. But for the reasons I discussed above, I think that even granting all those premises, it’s possible to productively distinguish between the two.

                    Let me put it this way — if you give me the choice of having the NYPD collect data on calls made to my number from certain specific pay phones in the Bronx or having the NSA archive everything they can possibly archive about my cell phone use and then collate that against a database of everyone else in the country’s call info, I’ll choose the former every time. Because they’re not the same to me.

                    • The scale is certainly different. But global terror is global. Would that Wajiristan was in the Bronx it would be a lot easier for law enforcement, I agree.

  • I think it’s important to distinguish between the different “modes” in which this data could be used. There are really three separate contexts we could be talking about, but it’s easy to conflate them, and make this entire debate even more challenging than it needs to be:

    This is the most clear-cut mode, where a crime has already been committed, and law enforcement / intelligence is trying to track down who did it, how they did it, as quickly as possible.
    Ethically, his is obviously most palatable context, since the visceral need to punish the wrongdoers is already firmly in place, and so for most people, that easily trumps the “cost” of sacrificing some personal privacy. Consider Boston, and look how eagerly the online community and the media embraced the idea of identifying the bombers through surveillance cameras and facial recognition technology. There was no huge backlash, objecting to the fact that any two given people — who were under no official suspicion at all — could be so easily traced and identified within hours. Screw reservations about FISA and “transparent oversight”…there was a mob vigilante mentality that gleefully committed the exact same violations of privacy that many of the same people are (rightly) complaining about, right now.
    What do you think the response would have been if, absent any tragic event, word had leaked out that the government was funding a program to make video cameras ubiquitous in major US cities, _and_ applying facial-recognition to make sure they could keep track of who was walking, where? Just in case there was a terrorist act, somewhere, someday?

    This is where investigators have already identified the possibility of a crime being planned, and are looking to use the data to confirm whether or not it’s actually underway, and who might be involved. The cause for suspicion may have come through a completely different avenue — like a tip, or a witness, or an investigator putting 2+2 together — but once there’s legitimate suspicion, this meta-data represents an entirely new category of evidence that could help investigate and potentially avert a crime.
    The core ethical issue on this level, then, is whether or not investigators should even have access to this new category of evidence at all. To summarize your argument, I think you’re saying that (a) it _exists_, so we’re willfully hobbling ourselves if we just ignore it, and (b) as long the government has to pursue it as transparently as they pursue any other kind of evidence, it’s not all that different.
    Other people obviously feel strongly that the government simply should not have access to this category of evidence at all, which I also understand. Nevertheless, I think everyone agrees that for any data that the government _does_ have access to, that access should be as transparent and open as possible.

    This is the full-blown “digital panopticon” / “pre-cog” model, where powerful algorithms sift through every single captured data point, and identify emergent patterns that could indicate criminal activity _before_ any human investigator is even suspicious of a crime. (E.g., “This set of recent immigrants, who all live in different US cities, call and email each other frequently, but they only communicate a pattern of disconnected cells. You should check them out.”)
    This kind of analysis will, without question, be possible within our lifetimes. In terms of PRISM, though, it’s not really the most relevant model to debate right now, since it really can’t be the norm quite yet. It’s not just that it requires enormous resources, as you’ve pointed out — the government would gladly spend its way out of that problem, asap. More importantly, our algorithms just aren’t fully up to the task yet. They’re getting dramatically better, though, and it won’t be long before they are.
    When this does become realistic, though, it will the most ethically challenging version of the issue we are going to face, because it completely transforms concepts like “due process” and “evidence”. What does “transparent process” mean, when you’re being accused by an algorithm? What’s the threshold for “reasonable suspicion”, when it’s being reported as a number?

    Not to get overly academic, but this is still in many ways the distinction between “a priori” and “a posteriori” thinking that people figured out a long time ago. The first two modes described here are much more squarely “a priori”, governed by the ideas in people’s heads, and so we can manage them by adapting well-established societal mechanics, like courts, laws, etc. It’s the emergent, “a posteriori” mode that’s really going to throw us a curveball, ethically and societally — we really haven’t confronted anything like that, before.

    • Nicely broken down.

      There is reason to believe that those “Pre-Suspicion” capabilities are rapidly advancing along a timeline far more compressed than “within our lifetimes.” (Check out, for example, the work which Palantir Technologies touts that it has been developing and providing to the DoD—tech that can be used for good, no doubt, but also for ill.)

      This sort of broad-brush analysis and profiling seems virtually certain to lead to some Tuttle/Buttle scenario, for you fans for Terry Gilliam’s _Brazil_.

  • Somehow you’ve managed to put my own jumbled thoughts on the NSA matter into a clear and concise essay. However, I live in a city that is still reeling from corruption scandals and I can only think that “the Government” is not a faceless entity but full of people, and people can be corrupted. I hope there will be future legislation that will make the FISA court rulings as transparent and as public as possible (just in case we elect some charming sociopaths like Kwame Kilpatrick by accident.)

    thanks for listening

  • Aside from the nooks of the legalities, I think the broad practical issue is if a new president is presented a program that is apparently working to counter threats, I can’t imagine, unless Glen Greenwald manages to get himself elected, either party is going to apply some standard beyond a legal one to halt what they view as useful intel. I can’t imagine the political and personal pressure on any President for the rest of our lives to prevent another 9/11. Where it gets almost impossible reconcile is when you realize that as much as Obama is no doubt certain he’s doing the right thing, so was Cheney. It’s a complicated world.

    • Hey, Dick Cheney never fired a drone missile at an American citizen. A hunting rifle sure, but not a missile.

      • While there’s a legalistic case that killing a US citizen jihadi is somehow more culpable than killing, say, a dozen Afghani kids, there’s no moral case. Zero.

        • There is no moral case, I agree. But the killing of the Afghan kids isn’t a violation of our Constitution. That doesn’t make it less egregious or appalling. But appalling behavior on the part of American foreign policy is not, on its face, a legal and existential threat to our constitutional republic. And that happens to be the topic here — liberty vs. security during a time of terror.

          When the American executive, with the approval of the national legislature, embarks on a counter-terrorism effort against stateless enemies who have indeed been carrying on military strikes against American citizens and who expressly seek to continue such, what follows — for better or worse — occurs with the express consent of our representative government and in no way violates the rights of our citizens. The resulting actions may kill militant enemies, as intended, or it may kill innocents. I grant that morally, the death of innocents is entirely repugnant. But the policy itself is, within the construct of American representative government, legal. (Afghan law and The Hague might of course argue otherwise).

          Even when operating in a stated war zone, when an American president adds a citizen to the target list without so much as a trial in absentia, he places himself in conflict with the constitutional rights guaranteed to all citizens. And so that matter is relevant to this particular discussion.

          No one here is exalting American life over others. But we are, in fact, arguing civil liberties against the need for proactive counter-terror. Ergo, the relevance of the fact that it is an American citizen that was targeted.

  • The media have little excuse to be outraged over this, because they’re supposed to be skeptical and in the know. You may slut-shame the media all you like. But the rest of us who have more important daily matters to attend to are properly blindsided by this. So we would ask that the media refrain from their faux-outrage and instead focus on how this matters to *us*. Telling *us* “you should know better” is a weak explanation if the outraged media didn’t sufficiently warn us in the first place.

  • Just do a search for AT&T San Francisco Carnivore Eschelon.
    It is the location of a super secret installation at 611 Folsom Street in San Francisco. Watch the PBS FrontLine Special and the PBS Nova program, “The Spy Factory.” This is where two different computer programs (Carnivore and Eschelon) “listen”, intercept, and analyze Internet communications at very high speeds. The computer software listens and looks for key words in domestic United States and incoming and outgoing traffic. Then generates dossiers (dos-see-eys). Been going on for a decade. Forget the happy talk on “Meet The Press.” Watch this PBS program and learn something. Does not matter which party is in the White House. The intelligence community is running the Banana Stand.

    Robert Linkroum

  • He who knows only one country doesn’t know any. I have spent a fair amount of time in Colombia, South America. I read the book Killing Pablo by Mark Bowden before my first trip. Colombia is a great example of a government who lost to terror. Presidential candidate, Galan murdered, countless judges, prominent journalists, police chiefs, attorney generals all murdered. The government was on the verge of being toppled completely. According to Bowden, it was US military intervention and surveillance that turned the tide and help topple the Medellin cartel. Whether or not that made a dent in the war on drugs can be greatly debated, but the country is a great study in terms of a government losing the reins to terror and almost not recovering. We don’t want that here, I am certain. The fact that we can debate this, criticize the government, criticize major media outlets and still wake up safe in the morning would be cause for great celebration in many countries.
    As far as the NYT, there were some pretty significant layoffs of senior staff not that long ago, so shocking words are not surprising. Newspapers everywhere are trying to survive. To me, the most important question here is -what is driving this order?

  • David,

    Interesting piece. However, while the reason for the existence of these systems is to combat terrorism, we both know that that won’t be their sole use. It should be assumed the FBI is using them to hunt down the Guardian and Post sources as we speak. Eventually, combating terrorism will become their secondary use. And considering how susceptible the FBI and CIA are to the whims of Washington, there is reason for serious unease.

    Yes, there are judges. But there is a valid reason why the creators of these systems are speaking out against them, at great risk to themselves. Wiretaps and watching pay phones requires actual work. These systems require no effort at all.


  • Okay, how about this. I know for a fact that the government fabricates pretexts where none actually exist in order to manufacture legal justification to surveil Americans. I know that because it happened to me. I, an American citizen who does not work for the government or possess a security clearance, was contracted to represent another entity to do a week’s worth of business with the NSA. At the end of that week, I said something to the effect of “If you have any further questions or require assistance, you can feel free to contact me.” The response from the NSA agent was to inform me that, due to my offer of assistance, that therefore I was a “potential contractor to the intelligence community”, and that, as pursuant to Executive Order #12333, that they thus had the legal right to wiretap me. Me, an innocuous American citizen, who had the misfortune of extending basic human decency to employees of the NSA.

    Your analysis assumes that the intelligence community basically plays by the rules to pursue wrongdoers, only occasionally misuses their assets, and that we should just tap them back into line when they start to go afoul. I find the argument flimsy, on the grounds that A) we are aware that this type of government surveillance is misused for strictly political reasons (see e.g. Operation Shamrock and surveillance of anti-war activists), B) we have no way of knowing the scope of it due to the fact that these programs are classified, and C) it isn’t up to you or me to determine what is right or wrong, or what merits surveillance; what matters is strictly whether the government is able to provide some justification to the rubber-stamp FISA court that says such surveillance is warranted. Hence, I would rather the government NOT develop capabilities to collect and permanently store information about the activities of citizens who are not suspected of any crime, to be mined according to the caprices of elected officials and the legal interpretation du jour. And if we’re really concerned about terrorism, maybe we should stop manufacturing terrorists through covert intervention that devastates other nations (see e.g. Iran 1953, Guatemala 1954, and so on — former NSA director William Odom has a lot to say on this subject).

    P.S. I like your work.

  • I think I agree with you, and to me the whole thing isn’t so outrageous, if this is all there is to it. Obviously I’d rather have a would-be terrorist caught before they are able to strike.

    Most of us can probably imagine a level of attention from the government that we believe is unnecessarily intrusive. That threshold is different from individual to individual, of course, and maybe what the Guardian and others are doing is telling us about a program most of us were ignorant of and saying, “What do you think of this?” My guess is we’ll soon see stories on polls that show most Americans don’t give a crap.

    But I do understand people’s reluctance to give away civil liberties and their wariness over secretive programs. I think what gives me pause is that it makes me wonder what else is going on that we don’t know about. There is other stuff, right? Stuff we still don’t know about? And what if it is going too far? How will we know?

    (I call these “unknown unknowns.”)

    At any rate, this is a somewhat normal debate you’ve got here, and I am appreciative of the thought you and others have put into it.

  • So how bad could it be?

    The answer, according to the mathematician and former Sun Microsystems engineer Susan Landau, whom I interviewed while reporting on the plight of the former N.S.A. whistleblower Thomas Drake and who is also the author of “Surveillance or Security?,” is that it’s worse than many might think.

    “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.”

    For example, she said, in the world of business, a pattern of phone calls from key executives can reveal impending corporate takeovers. Personal phone calls can also reveal sensitive medical information: “You can see a call to a gynecologist, and then a call to an oncologist, and then a call to close family members.” And information from cell-phone towers can reveal the caller’s location. Metadata, she pointed out, can be so revelatory about whom reporters talk to in order to get sensitive stories that it can make more traditional tools in leak investigations, like search warrants and subpoenas, look quaint. “You can see the sources,” she said. When the F.B.I. obtains such records from news agencies, the Attorney General is required to sign off on each invasion of privacy. When the N.S.A. sweeps up millions of records a minute, it’s unclear if any such brakes are applied.

    Metadata, Landau noted, can also reveal sensitive political information, showing, for instance, if opposition leaders are meeting, who is involved, where they gather, and for how long. Such data can reveal, too, who is romantically involved with whom, by tracking the locations of cell phones at night.

    It was exactly these concerns that motivated the mathematician William Binney, a former N.S.A. official who spoke to me for the Drake story, to retire rather than keep working for an agency he suspected had begun to violate Americans’ fundamental privacy rights. After 9/11, Binney told me, as I reported in the piece, General Michael Hayden, who was then director of the N.S.A., “reassured everyone that the N.S.A. didn’t put out dragnets, and that was true. It had no need—it was getting every fish in the sea.”

    • That’s from Mayer’s piece in the New Yorker, correct? Rather hyperbolic on the part of at least one of those sources. After all, how can metadata about the time and location and participants in a phone call be “more intrusive” than actually listening to and recording the call. That’s someone working past all rational fact to argue a point, sorry.

      I respect Mayer. But the metadata is not a wiretap, at least not when it comes to telephonic intercepts. And a DNR is not a wiretap. Never has been and never will be.

      • Ms. Landau must obviously mean that having the metadata (without the content) is more intrusive than having the content (without the metadata). The point is that the content does not always disclose the metadata. Listening in to a phone call, alone, does not always allow you to determine the parties in the call, and certainly it would be very rare for you be able to deduce the phone numbers of the parties just from listening to the conversation.

        The metadata comes in machine-readable form and can easily be processed on a large scale. Metadata is big data. By contrast, the textual content of a voice call is difficult to convert into machine-readable form in an automated manner. Of course, in the context of an actual wiretap, law enforcement would know the metadata associated to the content. But in the court of public opinion, Ms. Landau is trying to fight the wrong-headed public perception that spying on metadata is innocuous compared to spying on content.

        • Your interpretation of what Ms. Landau “must obviously mean” is, I’m sorry, just bullshit.

          Metadata without content is non-evidentiary. It’s the fucking conversation that puts people in jail. A wiretap is a wiretap is a wiretap.

          She said what she said and by any investigative standard, it is ridiculous and hyperbolic. And so is Ms. Mayer’s platforming of such statements.

          There is no doubt that even PEN registers and DNRs are intrusive. But they pale in comparison to having conversations — overt legal acts by identifiable suspects — captured and recorded. And the differing standards for gathering data and monitoring and recording human communication reflect that. Sorry, no.

          • We are talking on different wavelengths here. You keep applying rigorous legal standards to the debate. Rigorous legal standards are not the main metrics by which public policy debates are evaluated. Most people are not lawyers, and they frankly don’t give a shit what’s evidentiary and what’s not.

            Most people have no problem understanding what Ms. Landau meant. I really think you are in the minority here.

            • I don’t know. If people think knowing that a conversation occurred between two devices at particular locations, time and duration — with neither participant positively identified without additional surveillance information — is more intrusive than having the conversation listened to, recorded and preserved in a manner so that it can be played back in court, well, okay. People are then idiots. Never mind the obvious legalisms.

              So, yes, we are — on this particular point — talking on different wavelengths.

              • People are idiots who are expressing their opinion? They don’t want this sort of thing to exist. In a functioning democracy that would be what’s important but since our democracy does not function (hence the events of The Wire) the people don’t have a say.

              • You’re taking the “big” out of the “big data” equation, no?

                It’s not that observers have the metadata for a single call. It’s that they have all metadata for all calls from all individuals, allowing them to draw conclusions about these individuals.

                I’m not an analyst, and I understand what you’re saying about content being evidence in a typical criminal trial. Nonetheless, I find it easy to believe that this kind of pattern interpretation is happening, and that it could be used abusively in court. Call me crazy.

          • I’ve been on board with just about all the points you’ve been making in this discussion so far, but I’ve got to raise an objection to the premise that the content of the communication is unequivocally more valuable than the context. (Or vice-versa.)

            Yes, if Landau meant that the contextual meta-data for a call is categorically more valuable to an investigation — and more threatening to the participants — than what was actually said on the call, then she was obviously overreaching. The content of the call is usually a lot more relevant than the context.

            OTOH, to categorically assert that the content of a call is always much more relevant than the context is also an overstatement. Just look at the recent case of Rajat Gupta, where one of the key points of evidence didn’t have anything to do with the _contents_ of phone calls, but exactly when they were made. The prosecution introduced records showing that he was on a call with the Goldman Sachs board, then almost immediately called Raj Rajaratnam. Several minutes later, Rajaratnam made big bets on Goldman stock. The feds wiretapped a lot of calls in that investigation, but not those, but they were still keystone points of evidence in the trial.

            To me, the basic point is that it’s all _information_. Granted, the content of a call is going to be a lot more information-rich, and so is much more likely to be where useful evidence resides. That doesn’t mean that contextual metadata can’t be just as powerful and dangerous — or more — in different contexts.

            • Wait. Think about it.

              The context of that call had investigative value because of the timing, agreed. But had the content of that call been available to investigators — had they heard what Gupta actually told Rajaratnam — then de facto, the actual content would obliterate the implied context. Sometimes you don’t have the best evidence available. But that doesn’t mean that the wiretap isn’t always the best evidence.

              You just proved my argument with the example. What would prosecutors have given for a transcript of the call rather than it’s mere implication?

              I’ve said that context also has evidentiary value, but content clearly has much more of it. And in that light, Ms. Landau’s comments are silly.

              • The basic point is that one can easily imagine situations where a large quantity of context in machine-readable, digitally accessible form is much more useful than a large quantity of voice call content, which given the current state of voice recognition technology requires an expensive and un-scalable human transcriber (and possibly also an even more expensive and scarce language translator) in order to extract semantic meaning.

                You seem to be unyieldingly assuming that having the content implies that you also always have the context. I am not making this assumption.

                • Mr. Jao, ask any prosecutor on the planet what he’d rather have: Info from a DNR or transcripts from a wiretap. This is just silly. I’ve covered enough of this stuff directly to hold Ms. Landau’s hype in very low regard.

                  • You are the one being silly. We are not talking about prosecutors. The issue is abuse of spying powers. Prosecutors are not the only ones capable of abusing spy powers. In fact, they are probably way down on the list.

                    Your legal theories, however correct, are irrelevant to the discussion. Prosecutorial utility is irrelevant to the discussion.

                    • Dude, wiretap beats a DNR every time. A DNR has informational value. A wiretap has more.

                      Can’t say it any plainer. And Ms. Landau said the opposite.

                    • Ms. Landau did not utter the words “wiretap” and “DNR”. You are the one imposing this misguided interpretation on her words.

                      The plain ordinary English non-legal meaning of her words is that context gathering (without content) is in many cases much more easily abused than content gathering (without context).

                    • “It’s much more intrusive than content…you don’t need content.”

                      That is her claim.

                      Actually, Mr. Jao, you are the one imposing her view on what was originally a discussion not about the alternate value for metadata, but about a FISA court order and why law enforcement would legitimately seek the data under that order. That is the topic. That the data can be used in alternate ways, that it can be misused, that it has real value in other realms, some of them nefarious — I grant you and Ms. Landau all of that.

                      But here, what you entered into is an argument about whether its legal use as an investigative tool for counter-terror purposes outweighs the affront to individual liberty. That is the discussion into which you ventured. And so, yes, I am evaluating her comment as it pertains to this discussion. And I am saying that gathering metadata on an individual is not as invasive, or as evidentiary in nature, as recording them in video or audio. That is why the first requires a court order and the second, a Title III approval with higher standards of probable cause and exclusion of other possible investigative remedies. Forgive me for applying the criteria by which I actually made and pursued the original argument, but hey, that is my argument. And in that context, citing Ms. Mayer’s article attesting to the value of metadata in a different framework, or Ms. Landau’s quote requires me to say that no, from a legal and evidentiary standpoint, and the standpoint of the violation of an individual’s privacy rights, no, metadata is not “more intrusive than content.” That is, again, bullshit.

                    • You keep unjustifiably restricting the discussion to the legal framework. Contrary to your persistent misinterpretations, I am not at all concerned about the “legal use” of “investigative tools” (your wording). I am presently only concerned about ILLEGAL use, and more specifically the potential for illegal abuse. I do not think it is wise to apply legal standards to illegal behavior. By definition, illegal behavior occurs outside of the legal framework.

                      A large amount of content-free metadata is much easier to abuse illegally than a large amount of context-free voice data. We’re just going to have to agree to disagree on this one.

                    • I’m not sure you can call my point of interest unjustifiable when I began the discussion with an argument defending the legality of the Verizon court order and others like it.

                      At the same time, Mr. Jao, I do acknowledge and have acknowedged elsewhere and throughout the potential for misuse of so much data. In fact, I have gone further, I think the data will inevitably be misused at point, both illegally and indeed under legal cover of exaggerated claims of national security. I don’t know of any law enforcement asset, right down to the 9mms on the hips of any patrolmen, that are not misused at some point to deny citizens their rights.

                      But just as I am not inclined to disarm all of those who step into a radio car, neither am I willing to deny law enforcement the legitimate use of this data, for the purposes that it sought the data from the FISA court.

                      Firstly, I believe that the point at which you successfully contest the misuse of the data is not by denying that it doesn’t exist or isn’t fundamentally accessible to at least the highest rungs of federal law enforcement. No, that genie is well out of the bottle. I believe you fight that battle at the point of misuse, when the behavior of agents and prosecutors is obvious and apparent in its offense to civil liberties and privacy.

                      Secondly, I actually believe that when the inevitable misuse occurs, it will be the actual misuse that will energize real public demand for the appropriate limitations and safeguards against the capricious and unwarranted violations of privacy. The history of wiretapping itself tells the tale. First came the technology. Then, a spate of illegal wiretapping by the FBI and other agencies, and following that, the standardized Title III allowances and restrictions on when and under what circumstances a wiretap is permissible. This will happen with the phone data, and it will happen, eventually, with internet material, which is, in fact, the most vulnerable to privacy concerns given how little legal thought and sanction has accompanied its rise in importance.

                      There will be some ugly cases, and from that mess, there will, sooner or later emerge a political need to standardize and rationalize the use of this material with basic demands for civil liberties. But one thing will trail the other. Yes, it would be nice if our political dynamic was capable of foreseeing the need for the careful and responsible application of new technology in the context of law enforcement, but good luck with that. Historically, our standard operating procedure is quite the opposite.

                      But pretending this data doesn’t exist? Or that it doesn’t have an essential purpose in achieving a societal good? That’s a pretty desperate place to make a stand for civil liberties — before any cost to civil liberties has been demonstrated. And in terms of realpolitik, should opponents of the government’s use of this data prevail and the investigative value of the data be denied to law enforcement, we need only wait for a successful terrorist attack and a forensic discussion of what might have been discovered had the denial not occurred. At that point, it will be hard for any political leader to restrain the popular demand for the unrestrained use of such data, and there will be less standing for those of us hoping for viable restrictions on the use of the data for other, less worthy purpose.

                      You are not arguing with someone who doesn’t see the potential for the misuse of this data. But the data is not going to go away. It is here to stay. Better to begin rationalizing its existence — both with its value to counter-terrorism and its threat to civil liberties.

                    • You did indeed begin the discussion by defending the legality of the program. What I and many others have been trying to get across to you is that you are asking the wrong question. The question is not is this legal. The question is SHOULD this be legal. We’re going in circles and I’ve made this point numerous times already. If you still don’t get it then you never will.

                      The legality discussion may well be the discussion that you want to have. But it is not the discussion that you or the rest of us should be having.

                    • I understand your point entirely.

                      But as to your discussion, I have answered it quite obviously and specifically.

                      With regard to the FISA court order, I believe it provides a legitimate and valuable tool for the proactive investigation of global terror. I have said so. It should be legal, and it is. And every branch of American government has been apprised.

                      With regard to the obvious capabilities for such data to be misused for purposes other than counter-terrorism, those affronts to civil liberties should not be legal. And when they occur — and I even agree that they will at points, because all law enforcements are subject to abuse — the remedy should be fixed and meaningful. And if those misuses are permissible under existing law, then legislative reform will be essential.

                      And further, I’ve acknowledged that the too-secret status and nature of the FISA court demands more independent review and accountability, not only from within the judiciary, but citizen review as well.

                      I’m not being obtuse here. I’m speaking plain. It isn’t your answer and it isn’t an answer you agree with, but it is, indeed, my answer to your question. I am for using the data as a counter-terror tool and reacting to actual misuse when it occurs and when the civil rights of actual individuals are in fact affronted. I do not believe that we can proceed as if the data doesn’t exist, either politically or practically, given what is being asked of counter-terror agencies.

              • LOL…trust me — knowing that you’re reading and responding to these comments so carefully, I definitely _did_ think about it.

                To your point, though: Granted. It would have been even more convincing if they had access to the actual contents of those calls. Most of the rest of the evidence in the trials did apparently come from the content of wiretapped calls, and I would never claim that that their case would have been just as strong if they just had the call logs.

                But the point I was objecting to was basically your assertion that “Metadata without content is non-evidentiary.” I’m totally willing to concede that metadata is usually much _less_ relevant than content, but I just think that when you put it that categorically, you’re making an overstatement that’s not really necessary for your larger argument.

      • I would also like to add that your deference to 1980s precedent may not be warranted in this situation. Computers have advanced dramatically in the past 30 years. Our data-mining capabilities today far exceed anything that could have been imagined 30 years ago, when case law on metadata taps was being established. It may well be time to revisit those conclusions from the 1980s.

        • Technology has changed, particularly with regard to the internet. And I have said so elsewhere, noting that we might, as a society, want to revisit the limited privacy grounds for internet data, as compared with telephonic communication. But focus on the basic legalism which is precisely the same in both cases regardless of year:

          1) A communications medium is being used by a small minority for criminality. The vast majority of citizens use the medium legally.
          2) A court order is nonetheless obtained to collect all telephonic data from that medium, regardless. Dialed numbers, times and durations of calls are detailed, even though the devices themselves have yet to be linked to specific traffickers.
          3) Following additional investigation that is sufficient to identify specific suspects, a judge agrees to a wiretap of the medium that targets not
          all of the callers, but only the specific minority.

          You can philosophize all you want about technology, but the legal standards here are decidedly the same in both cases. The scale is vastly different; the legal edifice, though, is quite the same. That point is, I would argue, unassailed by claims of technologic anachronism.

          • All you’ve done is demonstrate that metadata spying is legal. You have not addressed the question of whether it *should* be legal. Obviously, we would need new legislation to change the law. New legislation may certainly distinguish between large-scale vs. small-scale trawling. Should we change the law today in response to new technological capabilities? I argue that we should. At least we’re having the discussion. Even that much represents a step forward.

            • Off hand, with regard to internet content, which is self-evident upon its capture, I would say yes, a new standard of privacy for such content should be considered. As to metadata with regard to telephonic intercepts, the actual evidentiary content of which is not self-evident until the higher legal standards for a wiretap are achieved, I’d say, no, the balance between privacy and investigative need is well-established and viable.

              For all of it, however, I would hope for more independent and thorough review and oversight of the FISA process, regardless.

            • Yes, the Stasi is certainly monitoring this very exchange of blogposts. Now if they would only wall off New Jersey from the rest of the country.

              Thanks for adding to the daily hyperbole pile.

  • You’re asking the country at-large to adopt the cynicism and defeatism of a salty old Baltimore city police reporter.

      • Let us now praise famous realists

        I’m trying to remember what Susan Neiman said about realism–or maybe it was what she said about what Kant said about it.

        But I think it was something along the lines of: It’s not exactly the American way.

            • Today, I am a crypto-fascist, yesterday I was a neo-Marxist.

              When you attempt to consider issues unto themselves, without a prime-directive from any given ideological camp, you wear all the names eventually.

              • The only people I can take seriously are those who do indeed look at each issue unto itself and “without a prime-directive from any given ideological camp” and this is why I take you seriously.

                Your logic on this NSA issue is sound.

                But, doesn’t it ever make you nervous that you’re so fucking sure of yourself all the time? Might you want to re-think your dismissal of other people who have different opinions than yours; dismissals that sound like: “disingenuous” or “obtuse” or “running a fever”?

                Maybe they too are just thinking independently and due to bio-chemistry, brain-states, erudition (or at least subject-matter expertise), and values have come to a slightly different conclusion than you.

                Maybe they are trying to solve the same problem you are, maybe just as honestly and creatively and with just as much rationality but they just have different inputs (e.g., they talk to different people, read different books, have different DNA, et.al.). And maybe these people can be taken seriously too and you can leave the snarky invective for the fatuous sycophants and shitheads who do reflexively toe-the-party-line. Maybe.

                I know you don’t think the person matters (in a debate), but since no one person can possibly know every bit of information extant (yet), then we are all woefully incomplete reservoirs of information. Our arguments are innately impoverished compared to the possible argument we could have if we knew everything. So shouldn’t we just assume that as righteous as we feel about an issue, that maybe, just maybe, someone, somewhere knows something we do not? Even us smart guys have not read every relevant book or talked to each Kurdish Independence fighter or felt the bio-impact (the emotions) inside the bodies/brains of people in Libya or Syria of having Saddam removed (sometimes called inspiration). I think some things are known (e,g., evolution by natural selection is true, liberty is better than slavery, The Wire is the best show ever, et.al.) but many more things are nebulous and subject to revision after more data is known and more POVs are honestly examined (and not dismissed out-of-hand because they don’t comport with your confirmation bias).

                Anyway, I’m sure you’re gonna call me retarded so I’m gonna get drunk to soften the blow. 😉

                “Shit was unseemly” – Cheese

                “On the mountain top we are all snow leopards” – Hunter S Thompson

                • I like to argue. I like it when other people think about stuff and argue as well. Ideas get better, not worse, with a good argument.

                  The only way to argue is to have a take. And the only way to argue intelligently is to assess all of the evidence and take your best shot. If you are afraid of being wrong, then you will never be right when being right might matter. I’ve been wrong on a lot of stuff.

                  I began as a police reporter believing in the drug war. I used to support the death penalty in certain cases.

                  Facts on the ground, and better arguments than my own, convinced me otherwise.

              • But totalitarian’s the only one that matters. And I doubt you’re really one of those.

  • The largest issue isn’t that they are collecting the information but they decided to keep it secret. I agree with you that the government shouldn’t have to pretend the data doesn’t exist, but it is still important to have the conversation. With Facebook, Google, Microsoft we all are given notice of the privacy policy. With this we were never given a choice. I’m not saying we need to know the algorithms being run, but we should know the data being collected. The problem with the oversight as it exists is that there is a disconnect between what the people believe is allowed and what the government thinks is ok so any oversight is ineffective. Important questions need to be asked. How long is this data being stored? What procedures are in place to handle miss use of the system. I don’t need specifics, but transparency numbers would be nice. Is that too much to ask

    • Again, if you are intercepting and storing communications in the hope of identifying criminal targets, it helps not to announce your methodology during the ongoing process.

      • David,

        First of all thank you for your rational, coherent replies to these comments; albeit I disagree with them. To your statement “if you are intercepting and storing communications in the hope of identifying criminal targets, it helps not to announce your methodology during the ongoing process” – I’d argue *that* is the problem. Law enforcement used to require probable cause to obtain a warrant to collect information on an individual who they believe is committing or conspiring to commit a crime. With the NSA, we have a nationwide fishing expedition on every citizen. I won’t argue the cost-benefit analysis because I don’t think that’s relevant. What I will ask is why this “war on terror” allows us to fundamentally change the way our government obtains information while investigating a crime?

      • Again I would disagree. There is a difference between saying they are collecting the metadata and telling us exactly how they collect the metadata. People know that their are speed traps, but because they don’t know where the speed traps are allows them to be effective. Even in your example, they received authority to listen in to a subset of all the payphone systems, gathered enough intelligence for the specific case they were working on and then used that information to get warrants for the content of the calls from those specific targets. What the government is doing now is gathering the metadata for everyone and storing it without a specific target in mind. Do you think the judge would have ruled differently if the request was to continuously monitor those phone boots even after the specific criminals were caught? This war on terror is not unlike the war on drugs, in that it will never end.

        My biggest concern here is that we were never given a chance to weigh in on this discussion and our privacy was not properly considered. I am a computer scientist and I have recently been reading on some research microsoft did. To put it simply they have discovered a way to anonymize data, pass it to a third party to compute some value and then have the result that the third party computes to be verified ( take a look at this http://en.wikipedia.org/wiki/Zero-knowledge_proof ). It is possible that phone companies could provide anonymnized data through which the government can then compute the “find me the terrorist” program. When the output of that computation is completed they could pass that information back the phone companies and say, give us the actual people who this algorithm identified. This would protect privacy while still allowing us to identify criminals. Of course because the computation is secret we still can’t say for sure the government is doing the right thing, but at least it limits the abuse and allows for better oversight, because they can now have specific targets in mind when they request warrants.

  • I remember the case of Kyllo v. United States where the Supreme Court ruled that thermal imaging the exterior of a home from a public vantage point constitutes a search requiring a warrant. This would seem to be a counterexample to your assertion that public data is fair game for law enforcement.

    Your analysis also misses what is, to me, the most controversial aspect of all this: namely, the gag orders that prevent third parties from talking about the surveillance or even acknowledging its existence, much less its extent. Without open, robust, and vigorous public discussion, there cannot possibly be any way to establish policy consensus. You are dead wrong in saying that we asked for this surveillance. We were never asked. It was kept secret. That’s the most distressing part of this entire scandal by far.

    • I agree that there needs to be more oversight and perhaps some generalized debate — about the basic perameters of the data being gathered, without revealing methodology. But understand that a fundamental of intercepted communications is that while you are doing this, you fight li