Metadata, Analysis and Freedom
Why freaking out about the NSA Surveillance Program is OK
This is my inaugural Medium post, as I was recently accepted into the Medium platform as a blogger, which means, almost certainly,that Medium has jumped the shark. Ignoring that, it is fairly sad that my first post will be about politics, and not some grand manipulations of code for great effect.
I just finished reading Slate’s somewhat calming article, “Stop Freaking Out About the NSA Surveillance”, which tries to convince us that the NSA’s surveillance is not Orwellian, that it is limited, supervised, and nothing to worry about. In short, I disagree.
“It isn’t wiretapping” - This is completely true. It is not wiretapping at all, the only thing that is captured is ‘metadata’ regarding the call, such as when the call was placed, the number the call was placed from, the number to which the call was placed, duration of the call, etc.
My daughter was, not too long ago, assigned a pen pal by her school. Her particular pen pal assignment was from another student in Kenya, East Africa. The pen pal relationship, though fairly benign (‘What is your favorite color? My favorite color is blue.’) could easily have evolved to making phone calls. If the pen pal were in a Middle Eastern country, and the calls were made with any degree of regularity, this likely would have given justification for more thorough investigation, perhaps a warrant might have been obtained through the FISA court, and my phone calls might now be being monitored.
That of course assumes a lot of ‘what ifs’, and takes a few logical leaps, but in a historical context without computers at all, the government’s possession of just metadata is still quite dangerous.
Our nation was founded, more or less, in secrecy from the British rule. Several famous-at-the-time statesmen would meet for long periods in a certain Philadelphia court house, all with the knowledge that if they were caught, they would be tried for treason and either be assassinated or hanged.
Simply knowing the ‘metadata’ from those meetings would have been enough to alert the King of the whereabouts of some fairly famous individuals. The attendee roster and meeting duration would have given ample evidence to the King to suspect wrongdoing, and it is likely that our nation would not have been birthed from that court house, and my family would currently be subjects of the crown, and not the citizens of the United States that we so proudly are.
“It’s judicially supervised” - This again is true, but it’s quite debatable to what degree. The surveillance being done is accountable to the Foreign Intelligence Surveillance Court (FISC), which Obama, to his credit, added as a layer of oversight as part of the Patriot Act extension.
The problem there though, is that the FISC has been criticized as effectively being ‘yes men’, rubber stamping every request that comes through with minimal, if any, critical review for justification.
Russel Tice, a former NSA analyst, has criticized the FISA for being exactly that. Their record shows that, since 1979, they have approved 33,942 requests, and rejected only 11.
It’s possible that this is indicative of a great degree of competence in due diligence on the part of the investigators, or alternately that the court is fairly lax on ‘probable cause’ justification. Wikipedia tells us that of those denials, many are accepted, or at least partially accepted after they are critiqued by the FISC and modified.
If lax judicial supervision is the only supervision we get, and the FISC is coaching the NSA in the requirements necessary to get approvals, then the fourth amendment and fifth amendments are reduced to rhetoric. “The government may only violate your policy by insisting that it can,” is of very little comfort.
I do applaud Obama for attempting to interject some degree of judicial oversight into the process, but if indeed the FISC is the “kangaroo court” it has been suggested it is, then there is no tangible difference in Obama’s Patriot Act than Bush’s.
“It’s Congressionally Supervised” - The assertion by the Slate article is that “any senator who’s expressing shock about the program is a liar or a fool.” That may be true, or it might also be that we have quite a few new recently voted in Senators for whom this program isn’t as on the radar as others.
Regardless, that Congress knows about it while the people do not, is of little solace. I think that most were aware that this could have been the potential ramifications of the Patriot Act, but I’m sure that many also trusted that it wouldn’t be, for all the obvious reasons Americans trust our elected officials. Whether that is naive or not is certainly up for debate.
Further, considering Congressional involvement pretty much ends with “they knew about it”, I don’t know exactly what about that statement is supposed to cause me to freak out even a little bit less. Just as when we found out that despite supposed Congressional oversight on this administration’s drone program, the CIA and JSOC were maintaining their own, secret kill lists, and Congressional oversight came after the fact, and without the knowledge of who was on the kill lists, how they got there, what the criteria was to get there, or even whether or not they themselves were on it (They probably were not).
“It expires quickly unless it’s reauthorized” - This, to me, smacks of disingenuous. Yes, both Verizon and the White House have acknowledged that the orders are ephemeral, but they also both admit that they’ve been ongoing, without interruption, and are routinely renewed as a matter of course.
Suggesting that I shouldn’t worry about a 3-month period is fine, if that three month period required substantial justification for renewal, or if it were actually expected to expire at the end of three months. Neither seems to be true in this case, and while technically, my contractless cell phone plan expires every month, it takes me actually making the decision to cancel said plan for that to bear any relevance to the conversation at hand.
“Wiretaps would require further court orders” - Again, this is not terribly comforting on the whole, firstly because of the lenience with which FISC seems to hand out those orders, but also because even if those further orders are obtained, they are obtained in secret, and without my knowledge.
The saving grace of a more traditional search is that I’m aware of it, and have the opportunity to react in kind. If I am stopped in the street and searched without probable cause, I can petition a judge to throw any evidence out (if any is collected) on the grounds that there was no probable cause. Even if the judge disagrees, and finds that there was probable cause, the case has at least seen the light of day.
With these secret orders, I am likely to never know if my phone conversations were recorded, or whether anything above and beyond the blanked metadata is being collected, which means that I haven’t any tangible thing to react to. I can’t petition any court, notify any media, contact any civil liberties groups, etc. I am just left wondering whether or not I’ve been listened to, or whether or not any of my conversations might have even proven to be of any interest to anyone.
It’s quite possible that each of us has been recorded for hours at a time. It is equally possible that calls are listened to across the board, though not recorded, listening for any points of interest. We don’t know, and apparently, our fourth amendment rights do not matter, in this case.
So?
Altogether, neither the Administration’s actions nor the apologists have given me the sense of calm they’ve intended. Perhaps because I understand how easily this data, alongside Prism data, can paint such a detailed picture with very little to correlate data together. Perhaps because I’ve worked on large datasets myself, and generally found that even abstract metadata can be exceedingly useful in trying to determine the actual activity, even in the absence of direct observation of that activity.
The most likely possibility though is when a warrant does come in related to some intelligence; queries against the collected data will, by default, be greedy, and will almost certainly contain many false positives. Having seen people tossed into Guantanamo indefinitely, without trial, and without oversight, the idea that it could be done so under the guise of war, and hinging on false information is one that very measurably troubles me.
It’s also important to note that this isn’t necessarily the fault of the current administration, but nor is it exclusively the fault of the previous administration either. Undoubtedly, the Patriot Act was clearly a bad law when it was penned, but it was only vaguely less bad when it was extended, despite Obama’s attempts to make it less so.
There are also still questions. Despite Obama’s assertion that this was a “classified, but not secret” program, it seems that it was indeed quite secret. I have little reason to believe that the sunlight we’ve seen cast on it recently will affect its continued operation, unless some of the ‘lying, fool’ Senators currently expressing outrage attempt to use this opportunity as appropriate for censure, or shutdown, the latter of which would be quite welcomed I imagine.
Finally, it is somewhat bittersweet that the most transparent administration in history seems to be living up to its promise, but only after having invoked the ire of journalists who now seem hell bent on exposing every piece of dirt they can dredge up. It’s a welcome change from the previous 4 years, where our Teflon president garnered no moss, and even if these things prove fruitless, it allows them to be discussed in public to allow for the further shaping of policy in the future.
Bipartisan outrage, like what we have now, needn’t necessarily be calmed, but ought to be approached with rationality, and gives us all an opportunity to determine whether or not this kind of action is egregious, even if it is later proven that our darkest suspicions were unwarranted, and I certainly hope that they are.
While I agree with Slate’s suggestion of calming down, I equally don’t want people to accept its explanations as canon. They certainly are possible explanations for the actions, but they are almost certainly not the full explanation, and that doesn’t even touch on the subject of whether or not this is the tip of the iceberg, with us just waiting for the other shoe to drop, or whether this truly is all that’s going on.
We know for certain that the Patriot Act’s Title II provisions authorize more than what we’ve seen, but we only know what we know now because of a leak and press coverage. What are the chances this is all there is to be said on the matter? I don’t know, and neither does Slate.
Thanks to Michael Z. Williamson, my favorite author I haven’t read, for copy editing and proofing this post, as well as my wife for pointing out that certain paragraphs were ‘stupid’.
