PRISM

by Kieran Healy on June 6, 2013

Bureaucratic administration means fundamentally domination through knowledge. … This consists on the one hand of technical knowledge, which, by itself, is sufficient to ensure it a position of extraordinary power. But in addition to this, bureaucratic organizations, or the holders of power who make use of them, have the tendency to increase their power still further by the knowledge growing out of experience in the service. For they acquire through the conduct of office a special knowledge of facts and have available a store of documentary material peculiar to themselves. While not particular to bureaucratic organizations, the concept of “official secrets” is certainly typical of them. It stands in relation to technical knowledge in somewhat the same position as commercial secrets do to technological training. It is the product of the striving for power.

{ 158 comments }

1

William Timberman 06.07.13 at 1:06 am

Reading this, my first thought was of the Soviet Politburo. The formula for bureaucratic power also seems to be the formula for ossification, isolation, and eventual irrelevance. A pity, from the individual’s point of view at any rate, that even institutions doomed in this way more often than not outlive the individuals who find themselves at the pointy end of their attentions.

2

derrida derider 06.07.13 at 1:22 am

Weber?

3

P O'Neill 06.07.13 at 1:40 am

The term “securocrats” is really overdue for catching on in the USA.

4

Lee A. Arnold 06.07.13 at 2:35 am

We are headed right into a police state. I think everyone already suspected that this is going on. The government will justify it, and a lot of citizens are going to go along with it, just as long as small groups of people can wreak enormous mayhem, and just as long as people are willing to kill themselves and take others with them. Which means, for a very long time. The new opportunities for a power-seeker to gain an enormous foothold have barely been explored.

5

Dan Nexon 06.07.13 at 2:45 am

Weber.

6

Ben 06.07.13 at 2:45 am

Weber? I hardly know her.

But the appropriate immediate reference is the panopticon, surely . . .

7

wb 06.07.13 at 2:48 am

Fortunately the terrorists are not winning …

8

Rakesh Bhandari 06.07.13 at 3:41 am

R &D bureaucracies of pharmaceutical companies burying knowledge of negative results in clinical trials so that the public cannot make accurate assessments of the relative effectiveness of different medicines? Are these the official secrets? Does not read as Ben Goldacre, but the quote could be twisted, I imagine, to mean what he has been arguing.

9

Substance McGravitas 06.07.13 at 3:46 am

Berlusconi did a pretty good job of power consolidation with news. What if he was a young man?

10

peggy 06.07.13 at 4:42 am

@Arnold
” small groups of people can wreak enormous mayhem” is true since the invention of modern technology- spear points. Remember that the Rwandan genocide was accomplished with machetes. Anyone who was once a teenager can remember meeting tiny groups of crazy people who hopefully grow out of their delusions.

It is through the response to mayhem that the strength of civil society shines. Drunken auto accidents rarely lead to eye for an eye revenge. Those mourners make do with an often inadequate court system. The relatively small number of terror killings in the US could by handled by a resilient society. (Three thousand in a dozen years is a small number compared to 30-40,000 auto deaths or 10,000 homicides and 20,000 suicides by gun every year.)

Political profiteers make use of fears stoked by terrorism to institute their preferred surveillance methods. As so eloquently put by army wife Maria below, using tragedy to increase increase the power of security agencies is an insult to the bereaved.

11

Andrew F. 06.07.13 at 10:55 am

Eh… The Guardian (and Washington Post) stories about “PRISM” manage to bury a rather key fact:

the “PRISM” program is aimed at information and communications originating in foreign countries that would be of interest to intelligence and counter-terrorist operations, much of which is routed through infrastructure owned by US companies. And of course the NSA collects such information. Undoubtedly, so do the intelligence services of any nation with the technical capability of doing so. Perhaps there will be a follow up story: CIA Steals Property from Foreign Governments!

Anyway, kudos to the New York Times for nailing it in the first paragraph. Imho, this is much ado about nothing. The interception of foreign communications into the US isn’t an expansion of government power. Nor is the cooperation of various companies with such efforts new. What is fairly new are the laws designed to bring FISA into the 21st century, and under which these programs now operate.

12

bexley 06.07.13 at 11:13 am

@ Andrew F.

Yup, I’m sure we all trust them just to only go after the bad guys. Especially considering revelations about law enforcement harassment of the environmental and animal rights movements.

http://www.motherjones.com/mojo/2011/05/green-new-red-crackdown-environmental-activists

13

Tom Slee 06.07.13 at 12:00 pm

Is the full set of slides online anywhere? All I can see is three of the 41, eg here. I feel like there is still a lot of uncertainty about the scope of the program and the kind of material it acquires. The flat denial from (seemingly) all the tech companies fingered is hardly conclusive, but given the reputation capital some of these companies have spent on proclamations of openness I suspect the end result when it comes to access will be somewhere between the “everything at all times” interpretation that seems out there at the moment and “nothing”. Apart from anything else, I am not convinced the NSA has the hardware and expertise to acquire the volumes of data that are being implied. Each company’s infrastructure is built on entirely different software stacks, and “access to the servers” is a pretty vague statement.

14

Ronan(rf) 06.07.13 at 12:33 pm

20 million a year (the programs costs) also doesn’t seem like a lot (or is a program like that cheaper to run?)

15

Rich Puchalsky 06.07.13 at 1:01 pm

Tom Slee: “Apart from anything else, I am not convinced the NSA has the hardware and expertise to acquire the volumes of data that are being implied. “

They don’t actually need to acquire huge volumes of data, they only need to be able to acquire whatever they want when they decide they want it.

Andrew F. is putting out the authoritarian fantasy that this is about foreign countries and intelligence. But there’s a technological fantasy too, that this is about analysis. It’s about social control. What most often happens is that a thug somewhere in the security system says “Get me everything on Joe Blow, American citizen. I think he’s suspicious, and I want to charge him with something.” So people obligingly trawl through all of Joe Blow’s stuff.

16

Ronan(rf) 06.07.13 at 1:11 pm

And how effective can a program like this be in its stated aims under near perfect conditions

http://bayesianbiologist.com/2013/06/06/how-likely-is-the-nsa-prism-program-to-catch-a-terrorist/

Not very it seems

17

Barry 06.07.13 at 1:16 pm

“Andrew F. is putting out the authoritarian fantasy that this is about foreign countries and intelligence. But there’s a technological fantasy too, that this is about analysis. It’s about social control. What most often happens is that a thug somewhere in the security system says “Get me everything on Joe Blow, American citizen. I think he’s suspicious, and I want to charge him with something.” So people obligingly trawl through all of Joe Blow’s stuff.”

Andrew F is continuing to uphold (downhold?) a hard-earned reputation.

What worries me is that I think that it’s worse than you think, Rich. You (and many others) are sorta operating in a 20th century mindset, where there’s actual effort involved in pulling a dossier. I assume by now that somebody can just pull one up in 30 seconds, with a few mouse clicks, and that a huge amount of condensation, summation and profile construction will have been done.

18

Barry 06.07.13 at 1:17 pm

Tom Slee: “The flat denial from (seemingly) all the tech companies fingered is hardly conclusive, …”

To my eyes it’s actually conclusive; I see specificity (things like ‘there are no ‘back doors”, as opposed to ‘we are not sharing information’).

19

bianca steele 06.07.13 at 1:31 pm

Rich, Tom: They already had the ability to acquire data whenever they wanted whenever they wanted it. This is written into existing regulation. We already knew they were asking for data without formal authorization, based on some vague “you know we’re really authorized” rationale. We already knew there was some kind of data mining going on, which would require some kind of large data set, presumably. This is new. But this is a lot of data people are talking about. At a minimum, it would impose enormous costs on everybody involved in gathering and producing the data. The four slides I’ve seen don’t actually pinpoint where on the continuum between “you know we’re really authorized” and “here’s a piece of paper telling you exactly what to do” this is.

20

Rich Puchalsky 06.07.13 at 2:01 pm

“They already had the ability to acquire data whenever they wanted whenever they wanted it.”

Not casually. The data analysis rationale is just so that they can have specifics on anyone they want to target without having to tell anyone why they want it. That’s why there’s so much vapor about them being able to do data mining that it doesn’t look like they can actually do.

“I assume by now that somebody can just pull one up in 30 seconds, with a few mouse clicks, and that a huge amount of condensation, summation and profile construction will have been done.”

It doesn’t really matter how easy it is, but in any case I doubt it — there’s no articial intelligence. How do you condense a dossier on someone who hasn’t committed a crime? I mean, you don’t even know yet what you’re going to charge him with. It could be drug charges, tax evasion, copying music, he could be a “child pornographer” (like the guy who was destroyed for forwarding Simpsons parodies), whatever. A certain minimal amount of detective work is required to make somebody into a criminal.

21

bianca steele 06.07.13 at 2:01 pm

This is written into existing regulation.: for phone, I don’t remember whether it’s also for ordinary IP traffic. I think I initially read the headline as being about phone traffic. Either way it’s an awful lot of data to “make a copy” every day.

22

wb 06.07.13 at 2:15 pm

Unfortunately PRISM did not catch the Tsarnaev brothers, but otherwise it is a great program …

23

Andrew F. 06.07.13 at 2:23 pm

Rich, that the collection effort is aimed at foreign sources of intelligence was reported in The Guardian and The Washington Post on the basis of the leaked information they received. This was confirmed by government sources to The New York Times, and was confirmed by a public statement Thursday night by the Director of National Intelligence.

All of those statements – from the leaker (also an authoritarian fantasist, in your view?), from documents provided by the leaker, from anonymous government sources, and from named government officials – are consistent with the actual mission of the NSA and with the very laws that were passed several years giving the government the power to collect such foreign intelligence in this manner. It’s astounding to me – though it shouldn’t be – that we seem to have forgotten detailed discussions of these laws.

So what I’m repeating isn’t “authoritarian fantasy” but the facts as we currently know them.

As to the idea that an operation like this would involve an unregulated and unsupervised ability for one person to simply say “get me all the information we are technologically capable of getting on citizen Joe Blow, he just seems suspicious to me”, that strikes me as very implausible given the effort expended on law and regulation constraining programs like this, given the obvious sensitivity of those who work in this area to the possibility of investigations and recriminations for any illegal activity, and simply given the bureaucratic nature of what appears to be a large and continuing government program.

Imho, there is a far greater likelihood of abuse of power by a local police officer, who operates more independently and often with less scrutiny, than a program of this size and profile, in which every keystroke can be recorded for investigation by an inspector general.

24

Trader Joe 06.07.13 at 2:41 pm

@16
There’s no need to use Bayes theory when you already know the answer. The point of the exercise isn’t to conjur bad-guys out of thin air at a 1 in 1 million or even 1 in 100 million ratio. The point is to see whether phone evidence is supportive of criminal patterns.

A Bayes problem would say something like: for a person who makes X phone calls over some period of time some portion would be to innocent parties and some would be to criminal contacts. P(innocent) + P(criminal) = 100%

Given a phone record in which an individual has – P(innocent) = 99% and P(criminal)=1%….what is the likelihood that the person is a criminal?

Intuitively as P(criminal) increases the likelihood increases. If one collects thousands of samples one can refine where the tipping point occurs to where additional research might be warranted.

Further correllating the answer to a network of contacts allows one to eliminate the suspect’s mother who might have P(criminal) of 90% despite being innocent and elevate the importance of a contact who had P(criminal) of 1% with dozens of suspects (i.e. a link in a chain).

The data collected has nothing to do with content, so the police work which would include the gathering of actually admissible evidence only begins when the “math test” ends.

I’m no fan of the suspension of civil liberties or big data intrusion – but the double standard is irksome. The media and “people” scream why didn’t the police/FBI/CIA follow-up the leads the Russians provided and stop the Boston Bombers (for example) then bridle at the use of tools that allow them to evaluate whether possible suspects Tsarnaev brothers were in regular contact with other persons of interest that might have elevated the likelihood that they were involved in concerning activities.

There’s never going to be a bright line that says this much data collection is good and this other amount is bad – the power of ‘big data’ analysis is it allows the possibility of focusing inquiry on the most highly corroborated suspects rather than just the Stalin-like approach of hauling every third citizen down to the Lubyanka to see what they might care to share.

25

Cranky Observer 06.07.13 at 2:44 pm

Rich @ 2:01,
By joining your Choicepoint profile, your Google search & click history, your phone logs & network map, and your e-mail logs & map. Plus more detailed records from the credit card companies, grocery store affinity cards, and whatever Palantir has on you if necessary. Trivial with today’s technology. Even the smallest mom-and-pop e commerce site has far more information about those who buy from, or just visit, it’s site than anyone realizes, and the Choicepoints & Googles (including Google Analytics) know you better than your psychiatrist.

Cranky

26

Ronan(rf) 06.07.13 at 2:47 pm

Andrew, even taking your argument on it’s own terms, it conveniently overlooks the specifics of the program (as mentioned in those articles)

“The Post article described analysts using “selectors” that are “designed to produce at least 51 percent confidence in a target’s ‘foreignness'”

Bianca @21

This might clarify?

https://www.propublica.org/special/no-warrant-no-problem-how-the-government-can-still-get-your-digital-data

27

Rich Puchalsky 06.07.13 at 2:47 pm

“given the obvious sensitivity of those who work in this area to the possibility of investigations and recriminations for any illegal activity”

Is anyone supposed to actually believe this? Service providers have been immunized for illegal activity, whenever it was revealed that they were sharing data with the government in ways forbidden by law, time and time again in recent years. Government employees openly tortured people and then destroyed the tapes when ordered to turn them over, without punishment. No inspector general is ever going to investigate whatever keystrokes are generated in pursuit of whatever the security agencies want to do. Or if they do, it’ll just be another case where it’s declared that we have to look forward, not back.

But I do like the continued slippage of the justifications for why we shouldn’t be worried that every electronic communication we make can be used to incriminate us whenever an example has to be made, or some boss just decides that he was disrespected. At the beginning it was “Oh, we’re only collecting communications from foreign countries.” Then it turned out they were collecting everything. Then it was “But you need authorization to look at that, from a judge.” But you don’t, the judges rubber-stamp everything, and anyways you don’t need authorization to collect data for data mining — you need all the data for that. So finally it’s “given the bureaucratic nature of what appears to be a large and continuing government program.” Yes, the protection for our rights is not law or regulation, but Dilbert’s pointy-haired boss being too incompetent to infringe on them. No, not credible.

28

Rich Puchalsky 06.07.13 at 3:06 pm

Trader Joe’s bit is even worse:
“Given a phone record in which an individual has – P(innocent) = 99% and P(criminal)=1%….what is the likelihood that the person is a criminal?

Intuitively as P(criminal) increases the likelihood increases. If one collects thousands of samples one can refine where the tipping point occurs to where additional research might be warranted.

Further correllating the answer to a network of contacts allows one to eliminate the suspect’s mother who might have P(criminal) of 90% despite being innocent and elevate the importance of a contact who had P(criminal) of 1% with dozens of suspects (i.e. a link in a chain).”

So let’s just invisibly search everything, and then investigate only the cases where it looks like there’s a good chance of criminal activity. Sounds great! There’s only one problem:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

That is unfortunately U.S.-centric, but many countries act under similar principles. As usual, authoritarians just don’t get why we have any of these rights. But — we’d catch criminals! they say. And the only alternative in Trader Joe’s mind is “the Stalin-like approach of hauling every third citizen down to the Lubyanka to see what they might care to share.” You see, you have no rights anyways, so why not have it done conveniently, at a distance, rather than go through the trouble and distress of having to make security people actually haul you in?

29

Ronan(rf) 06.07.13 at 3:23 pm

30

Trader Joe 06.07.13 at 3:24 pm

@28
If your’re going to quote out of contex, at least take the whole quote – how about where I wrote”

“The point of the exercise isn’t to conjur bad-guys out of thin air at a 1 in 1 million or even 1 in 100 million ratio. The point is to see whether phone evidence is supportive of criminal patterns.”

As you commented up stream – the process begins with “get me what we know on Joe Blow” and then follows with actual admissible policework.

The discussion about how one calculates Bayesian coefficients from disparate data was in response to Ronans link on same which concluded the batting average is near nil of collecting bad guys by searching data – I agree, it is near nil. Which is why its not done anything like that – it wouldn’t work without starting from the end point and working backwards.

Your quotation of the 4th Amendment is admirable, but courts remain mixed on exactly the point at which a persons electronic signature as represented by the data they transmit through public airwaves becomes an illegal search. A 51% probability based on data mining that someone is foreign, or talks to bad guys or likes anchovies isn’t going to result in charges.

31

Tom Slee 06.07.13 at 3:28 pm

The distinction between Americans and us foreigners is disturbing. In yesterday’s statement

[U.S. Director of National Intelligence James] Clapper said the internet program, known as PRISM, can’t be used to intentionally target any Americans or anyone in the U.S. He said a special court, Congress and the executive branch all oversee the program and that data accidentally collected about Americans is kept to a minimum.

Google claims that internet censorship is a trade barrier, but providing routine access to info on terrists and furners would defenestrate that argument.

32

Rich Puchalsky 06.07.13 at 3:38 pm

“The point of the exercise isn’t to conjur bad-guys out of thin air at a 1 in 1 million or even 1 in 100 million ratio. The point is to see whether phone evidence is supportive of criminal patterns.”

That’s what you say the point is. I don’t believe you. The only restriction that would cause the system to be used as you say it is would be the good intentions of people using it. No part of American political theory is based on unrestrained government officials having good intentions so that we should just trust them.

“courts remain mixed on exactly the point at which a persons electronic signature as represented by the data they transmit through public airwaves becomes an illegal search”

This thread is titled PRISM. PRISM is a program which, as Ronan’s link says, “allows it to directly access and copy the substance of our communications as they travel through most of the major internet company portals, including Google, Microsoft, Facebook, and Apple.” It’s not just metadata, it’s everything.

33

Tom Slee 06.07.13 at 3:44 pm

This is an interesting suggestion that the technology behind Prism (whatever that may be) may be from Palantir, who has or has had software by the same name. The Palantir Prism software looks like it attaches to relational databases only, and I think that would not fit the trawling of emails that is being suggested, but the connection looks pretty plausible to me.

Here is Palantir on their beliefs:

From protecting privacy and civil liberties to promoting open software to pursuing philanthropic engagements to a host of other initiatives, we put our values to work in the service of making the world a better place, every day.

So that’s all right then. I will refrain from leaping on my open scepticism hobby horse for several minutes.

34

William Timberman 06.07.13 at 4:01 pm

I love my iPhone (referencing a classic Bruce Wilder comment from another thread), but I nevertheless resent having bureaucrats-with-badges look upon me as a toy for their own personal amusement, or worse yet, a character in whatever administrative psychodrama is fashionable at the moment in the military-industrial complex. Who the fuck are these people, and why are their needs/wants synonymous with Public Safety?

In case anyone is slow on the uptake today, that was a rhetorical question. These people are who they always have been — non-entities in search of a validating armband, puffed-up functionaries with a god complex, whose half-life as a class will be as short as that of the regime they serve.

35

Jerry Vinokurov 06.07.13 at 4:20 pm

TraderJoe, if you’re going to talk about Bayesian analysis, it would behoove you to understand how it actually works.

Imho, this is much ado about nothing.

Say what you will about the tenets of National Socialism security state authoritarianism, Dude, at least it’s an ethos doing something.

36

Bruce Wilder 06.07.13 at 4:46 pm

“When those subject to bureaucratic control seek to escape the influence of the existing bureaucratic apparatus, this is normally possible only be creating an organization of their own which is equally subject to bureaucratization.” Weber

The means of observation, for the purposes of control, are cheap, really cheap, for the first time in human history. They are going to be tried, used, ubiquitous. Reciting legal formulae from the 18th (or 13th) century is not going to stem the tide. Nor are empty concepts, like “transparency”, going to save the day.

The foundation of liberal democracy is the concept of the legitimacy of opposed powers, in society and in the state: market competition, loyal opposition, antagonistic legal advocacy, trade unions and strikes, religious pluralism, countervailing power. The means of communication and computation are not inherently centralizing — they add to the potential of core and periphery in equal measure. The tension and anxiety arises from the realization at the core that the potential power of the periphery is rising apace, and the absence of imagination or good will at the core, in preparing accommodation or adaptation.

The fearsome potential for domination doesn’t arise from the magic of technology, but from the repression of legitimate conflict and the elimination of a resource basis for opposed powers. Let me draw attention, again, to Ian Welsh’s recent, short essay on what changed circa 1980:
http://www.ianwelsh.net/the-decline-and-fall-of-post-war-liberalism/

The unmistakable rise of the police state isn’t about how the ease of recording data adds to the bureaucratic spirit; the rise of the police state is about eliminating opposed powers: the authoritarian spirit that equates suspicion with guilt and expedience with efficiency. The authoritarian spirit is not much troubled with Bayes; it can barely conceive of any error, let alone multiple Types of Error. Everyone is guilty of something, and guilt puts the guilty outside of the protection of authority (there being no legitimacy of opposed powers); it is just a matter of determining what an individual is guilty of, and, then, discretion in stripping that individual of all property, independence and dignity, or selling the privilege of immunity.

Secrecy is just one among many means of eliminating a legitimate basis for opposed power. And, propagating fear is just one means of promoting the authoritarian mindset that accepts authoritarian claims of rational intention and purpose, as plausible, even when they should be recognized as ridiculous, wasteful or horrific.

Is it a secret that at Guantanamo, the U.S. got identification of the “worst of the worst” completely wrong, >93% of the time? And, on the basis of this evidence, we accept that “signature strikes” are effective? Bayes has some very heavy lifting ahead of him.

37

clew 06.07.13 at 5:02 pm

Let’s have a book event on Nick Harkaway. I can’t find his set piece on how surveillance systems make criminals — `stat-fillers’, from _The Gone-Away World_ — but here are two from _The Blind Giant_:

“Privacy is a protection from the unreasonable use of state and corporate power. But that is, in a sense, a secondary thing. In the first instance, privacy is the statement in words of a simple understanding, which belongs to the instinctive world rather than the formal one, that some things are the province of those who experience them and not naturally open to the scrutiny of others: courtship and love, with their emotional nakedness; the simple moments of family life; the appalling rawness of grief. That the state and other systems are precluded from snooping on these things is important – it is a strong barrier between the formal world and the hearth, extended or not – but at root privacy is a simple understanding: not everything belongs to everyone.”

“A desire for privacy does not imply shameful secrets; Moglen argues, again and again, that without anonymity in discourse, free speech is impossible, and hence also democracy. The right to speak the truth to power does not shield the speaker from the consequences of doing so; only comparable power or anonymity can do that.”

38

clew 06.07.13 at 5:03 pm

In other SFnal commentary, apparently some unlikely congresspeople praised Neal Stephenson for his prescience recently. I assume this is softening us up for the news that `the CIA merged with the Library of Congress and kicked out a big fat stock offering’.

39

Lee A. Arnold 06.07.13 at 5:20 pm

@ peggy #10 – I read Maria’s post about a minute after she posted it, and the story about the family getting the bad news after he was home and thought to be safe, hit me hard. I agree with most of what you wrote, but I think that dividing 3000 (I suppose you are referring to the World Trade Center) by 12 is not a good argument. I also think we are beyond the destructive ability of spear points.

40

Rich Puchalsky 06.07.13 at 5:29 pm

And so the pushback begins:

“Mr. Sullivan wrote in an e-mail: “I think he has little grip on what it actually means to govern a country or run a war. He’s a purist in a way that, in my view, constrains the sophistication of his work.””

Sullivan has an appreciation of these matters from his distinguished career as a military leader and political executive. I might as well give fair warning now that next time Holbo or someone leads off yet another post here with “Let’s see what Sullivan is talking about”, it’s going to turn into a discussion of this. I have no idea why people keep cooperating with Sullivan’s attempt to whitewash his serial creepitude.

41

Andrew F. 06.07.13 at 5:35 pm

Ronan, on the 51% number:

There are a variety of phrases implying different standards of proof which may have given rise to the 51% requirement. “Reasonably believe” and “substantial likelihood” are two contenders found in the text of relevant laws. “Reasonably believe” can be interpreted to imply a “more likely than not” standard, i.e. greater than 50/50 odds, though interpretation varies and in some cases it can imply less than 50/50 odds. Depending on when and how the PRISM program was first authorized, that “reasonably believe” phrase may be the source of the 51% requirement (the phrase forms an important part of FISA amendments that were passed in 2007, and then repealed in 2008, with certain exceptions for programs already in existence). Alternatively, if authorized under a different section, the “substantial likelihood” phrase may be the source.

Of all the aspects of this program, that “reasonably believe” requirement (or a close relative) is the most likely to be revisited, imho. But I suspect that the “selectors” used are likely strong enough to satisfy scrutiny by members of Congress (indeed, they have been for years now, apparently), and will likely be considered strong enough to exist under any modification to the law that makes it through.

Rich, the controversial interrogation procedures were the subject of numerous legal memoranda and investigations – they weren’t conducted ad hoc or in secret from the government; there wasn’t a thug somewhere who ignored regulations, went rogue, and decided to do things his way for his own interests. It was – for better and for worse – an institutional decision. To my mind, the use of this program by some rogue bureaucrat is only slightly less plausible than the idea that a pilot of a U-2 might be using it for spying on her ex-husband – it’s possible, but would be quickly detected, and those whose careers and legal freedom are tied to the program have every incentive to prevent and punish that kind of violation.

As to whether these would be the types of programs subject to investigation or oversight, they of course would be. These would be precisely the type of programs subject to the most monitoring for abuse, for reasons ranging from obvious prudential and ethical reasons to legal requirements to pure bureaucratic CYA.

42

Anderson 06.07.13 at 5:38 pm

33: Palantir? Srsly?

Because you would totally want to name your product after a communications network that is subverted by a powerful enemy and misleads the government that uses it to spy. What’s their motto? “Showing You What We Want You to See”?

43

Rich Puchalsky 06.07.13 at 5:43 pm

Anderson, if you can’t trust Sauron, who can you trust? Uses of his Eye are, of course, subject to monitoring for abuse.

44

christian_h 06.07.13 at 5:44 pm

Being one of them foreigners (if currently also a “US person”) it pisses me off when people suggest that collecting communications of all foreigners is somehow ok and merely standard espionage. It manifestly is not. Espionage is aimed at foreign governments and quasi-governmental entities. This is – even if we should believe the intelligence bosses whose job it is, after all, to lie – wholesale surveillance of private persons who happen to (maybe, with 50% probability) reside outside the US. Combined with the fact that the US also accords itself the right to abduct and imprison or simply assassinate those private persons it thus keeps under blanket surveillance this means that the US simultaneously claims that its laws apply persons outside its borders, and that the protections supposedly contained in those laws do not.

That isn’t Smiley and Karla, it’s the Stasi on an international scale. And to think Obama will likely whine about alleged Chinese spying (real spying). It boggles the mind.

45

P O'Neill 06.07.13 at 5:52 pm

#40, Rich, it’s worth looking at what Sully actually had put in the e-mail compared to what the NYT published.

http://ggsidedocs.blogspot.hk/2013/06/nytsullivan-email-exchange.html

That NYT article on Greenwald is bizarre. The shock that Greenwald is, gasp, wait for it …. not edited! And, also too, has opinions on the stuff he writes about!

46

Jerry Vinokurov 06.07.13 at 6:07 pm

Andrew F.’s legalistic drivel in this thread is timely, since it reminds me of the thread about celebrating deserters. Indeed, you’ll find plenty of people assenting to the banal proposition that “war is bad” but you won’t find them actually declining to wage any specific war; somehow war is generally bad but specific wars are always justified. Just so, Mr. F. will of course agree that “the surveillance state is bad,” but will expend incredible amounts of energy and verbiage defending any specific action of that state, sidetracking the discussion into trivial technicalities at every opportunity.

47

Rich Puchalsky 06.07.13 at 6:09 pm

P O’Neill, even I, with my minimal contact with journalists, read that Sullivan Email and understood exactly which part of it would be used — before I read the NYT article. Sullivan knew that too. When a reporter calls you asking for a quote, they don’t run with “Sullivan says of him that ‘I genuinely like him as a human being.'”

And Andrew F. is providing quite the object lesson on governmental propaganda. “The controversial interrogation procedures were the subject of numerous legal memoranda and investigations – they weren’t conducted ad hoc or in secret from the government”, which is why the tapes of them had to be destroyed, in response to official requests from a investigation to see them. No number of actual events will be allowed to discredit the bland facade. The request to see the tapes was from Senator Jay Rockefeller, on behalf of the Senate Judiciary Committee, but apparently that’s just not an important enough investigating agency within the government. OR the 9/11 Commision. No, none of that history even actually happened, because it categorically doesn’t happen that way.

The purpose of the justice system is to punish people and put them in prison, and thereby further the careers of the people doing the punishing. It doesn’t matter whether the people punished are innocent or guilty, so long as they sound guilty. No one is talking about this overwhelming surveillance being diverted to some private purpose — it’s being used for the same purpose that all such measures are designed for.

48

Ronan(rf) 06.07.13 at 6:14 pm

It’s even worse than getting sidetracked on technicalities, its getting sidetracked on generalities of technicalities, not caring enough about the technicalities to see what they actually say (and allow)

49

peggy 06.07.13 at 6:48 pm

@ Arnold #39
The assumption that terrorist abilities have been amplified enormously by modern technology is not historically grounded. Assassination was a popular protest one hundred years ago, felling Presidents Lincoln, Garfield, McKinley and also Archduke Ferdinand. Black powder, as used recently in the Boston bombs, was invented in Tang China, about 850 A.D. Long distance communication was previously available (although not cheaply) through couriers, pigeons and telegraph. Venerable internationally organized social structures include the Catholic Church and hawala, the Arabic system for money transfer which had its origins in the Quran. Crooked Timber readers are familiar with the spread of the ideas underpinning the French Revolution.

Small groups, internationally motivated, plotting and carrying out mayhem, is not new. Conrad’s The Secret Agent and Guy Fawkes are different versions of the same theme.

50

Trader Joe 06.07.13 at 7:09 pm

@32
“The only restriction that would cause the system to be used as you say it is would be the good intentions of people using it. “

Perhaps I’m naive, but I think there are more protections than just good intentions. There’s a reasonable leap involved between the ability to collect data (both meta and non-meta), actually collecting said data and then crucially, using that data in some manner and finally that the use is unlawful. I agree with your point about the potential for abuse – perhaps its not worth the potential benefits. I don’t think your point was the adequacy of the controls however, it seemed your point was the legality of the collection in the first place.

I likewise understand we’re talking about PRISM, not just meta-phone data. Ronan’s link, which you referenced, also noted the various court cases and the general legal theories which have been held to allow various forms of data collection. As I’m sure you know, its a very unsettled area of law. Courts are really facing the tip of the iceberg as to what constitutes public and private data and what expectations users of ISPs can expect to have for their data transmissions and how this might differ from various forms of wire-tap within telephony. I would like to see a more settled and probably more restrictive standard, but the current standard is “user beware” like it or not.

@35 Jerry – I expect my knowledge of Bayes is probably adequate, my ability to explain the underlying concepts in blog, without the use of a numbing multitude of mathmatical symbols is probably lacking.

51

peggy 06.07.13 at 7:40 pm

@ #39
Counting the deaths of 3000 US residents over a dozen years is apparently callous. Living in resolutely gun controlled Boston, I keep track of the murders of my inner city neighbors at 40-80 per year for a total of over 600 for that dozen years. Their grief, measured out in daily gunfire, is just as intense as the horror of 9/11 despite having only a thirteenth the population of NYC.

The social structures of those deprived neighborhoods and their church funerals allow them to overcome their quite rational fears and live normally, without embracing the false comfort of a police state. Why is the rest of the USA not so resilient? Answering that question will do more to resolve the problems of terrorism than untold billions spent on high tech spying.
http://projects.washingtonpost.com/top-secret-america/

52

Jerry Vinokurov 06.07.13 at 7:47 pm

There’s no need to use Bayes theory when you already know the answer. The point of the exercise isn’t to conjur bad-guys out of thin air at a 1 in 1 million or even 1 in 100 million ratio. The point is to see whether phone evidence is supportive of criminal patterns.

The point is exactly to find out whether any generalized communication pertains to terrorism; otherwise, if you already knew who you were interested in, you could just go get a warrant.

A Bayes problem would say something like: for a person who makes X phone calls over some period of time some portion would be to innocent parties and some would be to criminal contacts. P(innocent) + P(criminal) = 100%

Given a phone record in which an individual has – P(innocent) = 99% and P(criminal)=1%….what is the likelihood that the person is a criminal?

Again, no, because if you already know whose activities you’re interested in, you can just get a warrant to listen on that person’s communications; you know, just like you do in ordinary cases. The Bayesian problem is all about finding P(terrorist | pattern of communications). This is relevant because the first problem is just the ordinary problem of law enforcement, while trying to solve the second problem is the sort of thing that leads to developments like PRISM.

53

Barry 06.07.13 at 7:50 pm

Trader Joe:

“Perhaps I’m naive, but I think there are more protections than just good intentions. There’s a reasonable leap involved between the ability to collect data (both meta and non-meta), actually collecting said data and then crucially, using that data in some manner and finally that the use is unlawful. I agree with your point about the potential for abuse – perhaps its not worth the potential benefits. I don’t think your point was the adequacy of the controls however, it seemed your point was the legality of the collection in the first place.”

Except that (1) as far as we can tell, they are collecting the data, (2) they have abundant resources to collect and process the data, (3) ‘using that data in some manner’ is easy (100% efficiency is impossible, but irrelevant), and (4) ‘unlawful’? Are you really that stupid?

54

Trader Joe 06.07.13 at 8:08 pm

@52
Not if you don’t have information that would corroborate a warrant. To use the at hand example – the Russians tell us that Tsarnev might have had some contact with bomb builders in Chechnya. He’s been a person of interest, but the Russian data is questionable and he’s been outspoken at his church, but CIA (or whomever) doesn’t have sufficient evidence of probable cause or clear danger to obtain a warrant.

Enter PRISM – Starting with Tsarnev’s phone meta and any other data they work backwards to see if his communications fit the profile – from that, perhaps they have the cause they need to seek a warrant and then, as you say, they get one. The use of the profiling is targeted, but one needs an antecedent case to compare it to – thats why you need a deep pool of data and can’t just collect each sample on-off.

The Bayes application results from the comparison to the single known case at hand to the full pool of data.

@53 I guess my tin-foil hat just isn’t on tight enough

55

Manta 06.07.13 at 8:09 pm

I wonder how much of this information has been used to blackmail political opponents.

56

Jerry Vinokurov 06.07.13 at 8:33 pm

He’s been a person of interest, but the Russian data is questionable and he’s been outspoken at his church, but CIA (or whomever) doesn’t have sufficient evidence of probable cause or clear danger to obtain a warrant.

As far as I know, and correct me if I’m wrong, that wasn’t actually the case. The FBI questioned him and decided not to pursue the case; had they wanted to open a legitimate investigation into Tsarnaev, I can’t imagine what would have prevented them from doing so, nor can I imagine a judge failing to authorize a warrant based on that information. Then they would have been able to monitor his communications, and his alone.

The other problem with applying Bayesian reasoning to this whole mess is that you a) don’t know what the priors are, and b) don’t know how to calculate the likelihood. I mean, I’m sure the NSA has some sort of logic for doing so, but since they’re not going to tell you what it is, there’s no way of knowing how reliable it is. Couple that with a possibly arbitrary choice of prior and you get a recipe for spying on pretty much anyone.

57

Trader Joe 06.07.13 at 9:09 pm

I don’t mean to imply the Tsarnev’s were an example of it being used – its not as though they’d make it known if it was. But…Maybe the reason they went to question him was following the application of the protocol I described?

I get your point – but anterior Baysian analysis is done all the time and if (as someone else posted) all you need is 51% confidence there are a lot of ways to make the math work. This discussion began when Ronan (@16) included a reference to what the NSA could get out of a Baysian analysis of the data and I suggested that said blog was looking at the problem the wrong way around.

I would tend to agree with your point on priors, which is why the collection of massive amounts of data (meta or not) is not truly as helpful (or as harmful) as people want to imagine. I’m not going to go to bat for the reliability, but the more data they collect the better chance that they do find causal pairs that are predictive.

58

Trader Joe 06.07.13 at 9:11 pm

sorry – I should have said posterior Baysian analysis is done all the time

59

Ronan(rf) 06.07.13 at 9:31 pm

“This discussion began when Ronan (@16) included a reference to what the NSA could get out of a Baysian analysis of the data and I suggested that said blog was looking at the problem the wrong way around”

Well I didn’t know it would be so controversial! But I’m largely ignorant of stats so found your back and forth with Jerry interesting
Just to say, I don’t think the link did say ‘what the NSA could get out of a Baysian analysis of the data’. By my reading (which could be wrong) it just used a Bayesian analysis to work out what sort of success rate the program could have under certain conditions.

60

peggy 06.07.13 at 9:49 pm

Actually Trader, the elder Tsarnaev was fingered by the Russians for being a Chechen and acting in some way ‘suspicious’ and they informed the FBI. When he returned to Russia for his last visit, the FBI dropped the ball because their transliteration of his name was not identical to that employed by the airlines. Despite all this computer wizardry, ‘fuzzy logic’ is beyond their powers. Amazon and Google can correctly divine my misspelled intentions, but not the well paid denizens of the security state.

For example, Tsarnaev is spelled differently in #56 & #57 on this thread. The Russians did have the advantage of having competent linguists familiar with Russian and the other languages that were being used.

61

jgtheok 06.07.13 at 10:11 pm

@52
Whose job is it at Verizon/Google/wherever to comply with a warrant? How many warrants would there be in a week? How much work involved in extracting all and only relevant information from their records? Would this be a 24/7 service? Who pays?

I grasp the potential for abuse, but find it worrisome how several of the more vocal participants in this discussion take the worst of motivations as unquestionable fact. Is it truly unthinkable that the government collects and organizes such data to support legally-sanctioned use cases?

62

Emma in Sydney 06.07.13 at 10:33 pm

Christian_h, exactly. It is chilling how natural it seems, even to many progressive Americans, that their government should have the right to murder, imprison, bombard, and put under surveillance the citizens of other countries, while remaining immune themselves. So natural, that it becomes entirely uninteresting. Unless one happens to be non-American.

63

peggy 06.07.13 at 11:26 pm

Emma, foreigners are chicken. Just because Maher Arar was detained during a layover at JFK on his way home to Canada and then sent to Syria to be tortured for a year is no reason for “good” aliens to be nervous.
If You Haven’t Done Anything Wrong, You Have Nothing to Worry About

64

Andrew F. 06.07.13 at 11:29 pm

Ronan, I think the legal specifics (technicalities, as you put it) matter, but I do not know the section of law under which PRISM would have been authorized. As I said above, there are at least two possibilities, one relating to sections of law repealed in 2008 but which may have allowed (by the same law repealing such sections) programs then in existence which were authorized under the repealed sections to continue, and another relating to a section of law that is current. If you’re really curious, the relevant sections would be in Title 50, Chapter 36, Subchapter I.

Rich, let me see if I can at least clarify where we disagree.

I believe that the program most likely is not illegal, given its characterization by the leaked documents, the source of the leak, and government officials.

You seem to believe that it is likely either illegal as described or in any case is being used for illegal purposes. But I do not know of any evidence that it is being used for illegal purposes. My assessment of the probability of illegal use is low given the legal constraints placed on such programs, the technological ease with which they can be monitored, and the incentive for those at work to avoid illegal activities.

You believe otherwise because – ? I cannot tell if you think that the program as it has been described is illegal, or if you believe that the program is not being executed as described and instead involves all manner of nefarious schemes. I’m not sure what the justification is for either possibility. A general sense of the evil of government employees? A secret NSA career advancement program for officials that produce the most damning information on the President’s enemies? Something about the description that itself makes clear that the program exceeds the law?

There is always the possibility of the FUTURE abuse of such programs, in which the argument is about whether the oversight mechanisms in place are adequate. Is this the key criticism? If so, what are the inadequacies and how can they be remedied?

65

Ronan(rf) 06.07.13 at 11:50 pm

“Just because Maher Arar was detained during a layover at JFK..”

But Andrew F says the intelligence agencies don’t make mistakes!?

Andrew

But I linked to an article @29 that covers the technicalities? And your contention is wrong
But lets put it more generally. Your argument is that the program is okay because it ‘targets foreigners’? (But we’ll leave what ‘targets foreigners’ means unexamined) So by your logic, you might have an issue with the program if US citizens get caught in the surveillance. And we know they do, both by the 51% rule that’s been reported (and your only response to that is a gibberish history and a guess that it might be repealed) and by Jennifer Granick in the link above, an expert in this area, who says, adamantly, that Americans do get caught in the surveillance. There is no real world scenario where this program could be run without also catching Americans in the surveillance. None.
So what exactly is your argument? Is it that it’s necessary, and effective? If so then make that case!
Or is your argument simply that its good because it exists? Or it’s good because it’s legal? I genuinely have no idea..

66

Walt 06.07.13 at 11:52 pm

Andrew F’s argument is that it’s good because it’s the status quo, and conventional wisdom says it’s okay. As always.

67

Ronan(rf) 06.07.13 at 11:54 pm

Also, this:

“As to the idea that an operation like this would involve an unregulated and unsupervised ability for one person to simply say “get me all the information we are technologically capable of getting on citizen Joe Blow, he just seems suspicious to me”, that strikes me as very implausible given the effort expended on law and regulation constraining programs like this, given the obvious sensitivity of those who work in this area to the possibility of investigations and recriminations for any illegal activity, and simply given the bureaucratic nature of what appears to be a large and continuing government program.”

Is all a strawman

68

Colin Danby 06.07.13 at 11:59 pm

Just a quick geeky point: the Bayesian bit linked above seems irrelevant.

What they’re doing, surely, is leveraging the power of lots of records to work out who is in regular contact with whom, and whether those dyads build up to larger *shapes*. For example I have a bunch of relatives abroad and our regular phone calls and emails will map a network with its own temporal and spatial profile. When something happens like a death in the family, you would observe obvious shifts even without knowing the content of the communication: frequency of calls, calls to people not often called etc. You’re gonna track length of calls, calls not at usual times, cascades of calls etc. So you’re mining for the larger shapes of networks and their temporal rhythms and shifts. This also gives you the ability to poke one part of a network and see how the rest of it reacts.

The fact that phone and email communication are so cheap means that there’s a lot more of it and hence way more data to mine. What a goldmine for a social network theorist, and no pesky human subjects reviews! What’s interesting/chilling is not so much the narrow and specialized investigations into terrorists as the vast access to the ordinary that this data provides.

69

Ronan(rf) 06.08.13 at 12:14 am

“Just a quick geeky point: the Bayesian bit linked above seems irrelevant.
What they’re doing, surely, is leveraging the power of lots of records..”

Yeah, that makes sense. Thanks

Andrew

Reading back on your comments, I’ve noticed I’ve caricatured your position. So apologees. You’ve stated it clearly enough(though I think I disagree)

70

PJW 06.08.13 at 1:23 am

Colin Danby @67 “vast access to the ordinary”…

Yes to that. I also find it to be chilling and interesting. One example of this I’ve had on my mind recently — it’s not going to be that many years down the road when Google will know where we are every inch of every trip we take while riding in their self-driving cars, which can see around corners. Google’s Eric Schmidt had some interesting things to say about privacy at the recent Hay Festival and I’m guessing he addresses some of these issues in his book New Digital Age.

71

Lee A. Arnold 06.08.13 at 3:14 am

Peggy #49: “The assumption that terrorist abilities have been amplified enormously by modern technology is not historically grounded.”

I observe that 19 irregulars with little more than spearpoints needed only two hours to kill 3000 people while destroying two of the largest buildings in the country.

What you may not know is that for years before that, local hazmat teams around the country were being trained by the feds to respond to bio & chem attacks on subways and sports stadia. Any place where there are lots of people.

I am sitting one mile from where some asshole just shot up Santa Monica College.

Pretty soon you are going to be able to assemble sub-visible nanotech killing machines with a desktop printer. You have no idea what is not “historically grounded”.

72

Tom Slee 06.08.13 at 3:18 am

Lee Arnold. Everything you say is true, but nothing you say addresses what Peggy writes.

73

Lee A. Arnold 06.08.13 at 4:14 am

@72 Tom, what Peggy writes is that to think about the fact that the world is headed into greater insanity is to believe that a police state is necessary. I didn’t write that, I don’t want it to happen, and to imply that I believe otherwise is ignorant and a bit offensive. I think we should think about things clearly. Do you think the “rest of the country” can be made more “resilient” with “church funerals” in order to “allow them to overcome their quite rational fears and live normally”? I observe that instead, most of the country got talked into invading Iraq, to have even more funerals. The argument that the rates of death in 9-11 aren’t any worse than regular homicide rates is absolutely true, and that is the roughly same argument that is used AGAINST gun control: the U.S is having a big gun massacre about once every two years, and the gun lobby’s strategy is (roughly) to defeat legislative measures until nearly everyone (but the loved ones) cools off and forgets about it three months later. So I don’t trust people who say cool off. You should think clearly about the fact that there may be bad times ahead. Putting your head in the sand about it, is the real way to end up in a police state.

74

Jerry Vinokurov 06.08.13 at 4:52 am

Colin, I think everything you say is true but it doesn’t really intersect with the Bayesian argument directly; at some point, whatever shapes those patterns of communication take, presumably someone at the NSA will be tasked with doing inference on them. Obviously we don’t know what the inference methodology would be, but the Bayesian example is just a way of doing a quick and dirty calculation of what kinds of success rates you might expect. The whole point is that even if your “terrorist detector” has a very high rate of success (and I think we’d all agree that 99% is ludicrously generous) the priors are going to drag the probability that any given person flagged by said algorithm is actually a terrorist down to a very low number.

One some level, the technical details can be seen as irrelevant to the larger question of the violation of civil liberties, but on another level, I think it’s important to understand something about how the system works because that has implications for how civil liberties are violated. Consider two situations. In one, an FBI agent shows up at the courthouse with a request for a warrant to monitor some individual’s communications, bearing, presumably, some evidence suggesting that this person is involved in some sort of terrorist organization. In another, the same agent shows up with an NSA report that suggests that based on a certain pattern of communications, this person has a higher than 50/50 chance of being involved with terrorism. I suspect that the judge would probably grant the warrant in either case, but in the former situation at least the evidence is comprehensible to a human being without special statistical training. In the latter case, the probability is hugely model-dependent, and I don’t see how judges, who are not data scientists, are going to be able to reason intelligently about it. The model itself would almost certainly be hidden from public knowledge and have a sufficient number of free parameters that you could implicate almost anyone you wanted to if you tweaked them right.

That’s why these efforts are such a threat to civil liberties: they are essentially secret statistical models whose inputs are unknown to us and which can be manipulated to get almost any result. That means that when someone says “this person was flagged as having a greater than 50/50 chance of being involved in terrorist activities,” it can be entirely true, and entirely devoid of meaning, since no one outside the NSA would actually know what that means. Do you use PGP encryption in your emails? That’s a flag! Make lots of foreign calls? That’s another flag! And so on; you have no idea what features are being collected and how they are being used. Which means that the determinations themselves are entirely meaningless; anyone could be flagged for any reason whatsoever and we’ll never know what those reasons actually are, but we’ll always be reassured that “the model told us to do it” is a completely neutral scientific justification, when in fact it’s no such thing.

75

js. 06.08.13 at 5:12 am

what Peggy writes is that to think about the fact that the world is headed into greater insanity is to believe that a police state is necessary

Not sure where you’re getting this from really. Seems to me like both you and peggy are making a fair bit of sense and should be more on the same page than not. (Kind of like what Tom Slee said.)

76

nvalvo 06.08.13 at 6:01 am

To inject a bit more into this conversation, I read that in 2009, due to a typo, the NSA pulled a bunch of irrelevant information on non-terrorists. The FISA court required the data be destroyed (why wouldn’t it be?) and made the Justice Department put new safeguards in place before the program could be renewed.

The press seems to be making this into a parable of how stringent the FISA court is with the NSA, but that seems less interesting to me than the image it paints of an agent typing the phone number to initiate a search. It seems so quotidian. It is, as a friend tweeted the other day: “the banality of email.”

77

gnome 06.08.13 at 8:12 am

It seems to me there is a way to create an “immune response” so to speak that is both strong vs. external threats and at the same time benevolent to the organism itself. To me how we deal with this should involve a constitutional amendment outlining how these type powers can be used – and strictly codifying their limitations. In a biological sense we need a response that is strong when needed, but stops short of destroying damaging the organism itself – similar to autoimmune disorders like Lupus, arthritis, or type 1 diabetes. My gut tells me law big data is here to stay – but insulating citizens from its usage by the government can still be outlined. A bigger question might be how do we protect ourselves from non-governmental uses of big data?

78

novakant 06.08.13 at 11:00 am

What christian, emma and peggy said – the nonchalance many US “liberals” display when it comes to “foreigners” is quite breathtaking. And in related news:

http://www.guardian.co.uk/world/2012/mar/01/menwith-hill-eavesdropping-base-expansion

http://www.guardian.co.uk/world/2013/jun/07/obama-china-targets-cyber-overseas

79

Mao Cheng Ji 06.08.13 at 1:30 pm

Well, as christian_h said, it does seem similar to Stasi, NKVD, and such. The distinction between a citizen and foreigner is probably meaningless; they just need to file one more paper, a probable cause. Make a list of the disloyal and keep an eye on them; probably the oldest play in the book.

80

Rich Puchalsky 06.08.13 at 2:58 pm

Andrew F. : ” I cannot tell if you think that the program as it has been described is illegal, or if you believe that the program is not being executed as described and instead involves all manner of nefarious schemes. “

Of course the program is illegal. Part of the evidence that you insist on ignoring is that there have already been several iterations of providers being immunized for illegal actions.

Perhaps you don’t like the word “illegal” because only those in power get to decide what the law is. All right then, it’s immoral. The 4th Amendment is one of the rules that we’ve supposedly agreed to live with, and the government is searching every Email of every U.S. citizen. (I emphasize U.S. citizens not because I don’t care about foreigners, but because the U.S. is already a corrupt enough country so that appeals to common humanity don’t matter.) That’s what all of this statistical nonsense about Bayesian analysis and data mining is about: you search all of the Emails and find patterns.

Would it matter if it were perfectly legal? No. The U.S. has the highest incarceration rate of any country in the world. We have 5% of the world’s population, but 25% of the world’s people in jail. We have a larger absolute number of people in jail than any other country, including China and Russia. Is that because Americans are an unusually criminal people? No. It’s because our justice system is run by and for thugs, people with fewer qualms about locking up their neighbors than government officials anywhere else in the world. Of course, this situation is in large part a means of social control involving race. But they’ll put anyone away at whim. And we have evolved a sufficiently complex set of laws, enforced only on the powerless, so that absolutely anyone can be found guilty of a felony if police attention is focussed on them.

And now you’re saying that we should simply trust the chief data collectors for this system to be good people. That all they’re concerned with are bad terrorists, or at least spies, or at least foreigners. No. There is no reason to spin out these fairy stories about a well-restrained program, not when every time it’s come to the public attention, it’s been because of illegal activities. Of course it is used against ordinary citizens.

81

Cranky Observer 06.08.13 at 3:14 pm

= = = Andrew F @ 11:29 PM: “There is always the possibility of the FUTURE abuse of such programs, in which the argument is about whether the oversight mechanisms in place are adequate. Is this the key criticism? If so, what are the inadequacies and how can they be remedied?” = = =

We already have the example of Richard Cheney and John Bolton using intelligence assets to spy on the the United States’ UN delegation – which they suspected was too squishy – so I’m not sure why you think that abuses of wide-net data gathering programs are in the ‘FUTURE’.

Cranky

82

Andrew F. 06.08.13 at 4:36 pm

Rich,

Of course the program is illegal. Part of the evidence that you insist on ignoring is that there have already been several iterations of providers being immunized for illegal actions.

Certainly there is substantial question as to whether the “warrantless wiretapping program” or “terrorist surveillance program” was legal under the law as it existed at the time, and whether electronic communications providers could be liable for participating in it.

However, I’m asking whether the program disclosed is legal or illegal under the law as it currently exists. While electronic communications providers do have immunity when cooperating in good faith with orders or directives issued according to the law, that doesn’t tell us whether the program is itself legal. Immunity from liability is extended by law in a variety of contexts – ranging from the provision of defibrillation devices in airports to the provision of an interactive communications service – to encourage certain behavior by eliminating the risk of costly civil litigation for undertaking that behavior. The extension of immunity here allows us to surmise that costly civil litigation was a concern of companies that would be recipients of orders under FISA. It doesn’t allow us to surmise that every order issued and received must be pursuant to a program that is actually illegal.

So, let me be more specific in my question: what specific part of the program described do you think – or does anyone think – to violate the law? Presumably it’s this:

[…] and the government is searching every Email of every U.S. citizen.

But the leaked documents don’t show that, and the source of the leak didn’t claim that. No one with any knowledge of the program has alleged that. Are you drawing this conclusion based on other evidence?

And we have evolved a sufficiently complex set of laws, enforced only on the powerless, so that absolutely anyone can be found guilty of a felony if police attention is focussed on them.

Obviously the law is enforced against people who are quite powerful – see any one of many insider trading cases for examples – so that part of your statement isn’t true. Neither do I see any evidence that our laws are so complex that everyone has committed a felony at some point. What reason do you have for thinking this?

And now you’re saying that we should simply trust the chief data collectors for this system to be good people. That all they’re concerned with are bad terrorists, or at least spies, or at least foreigners.

No, I’m stating that there is a system of legal constraints and oversight in place, including procedures for reporting and disposing of information accidentally collected from “US persons”, and that the source of the leak seems to have stated, based on the reporting in The Guardian, that the program is directed at foreign intelligence (which was confirmed publicly by government officials).

Is there an allegation by anyone familiar with the program, including the leaker, that it is aimed at collecting information from “ordinary citizens”?

In what respect do you think the procedures already in place to prevent abuse are inadequate?

83

Bruce Wilder 06.08.13 at 4:51 pm

Phone records are not secret. Maybe, they should be. No, forget the maybe. Phone records should be private, and the customer should at least share a proprietary right in that data with the phone company. But, they’re not private. At least not to the customer.

I don’t know why, but Verizon does not effectively protect your privacy with regard to your phone bill. A clever private detective can probably retrieve your latest phone bill within a few minutes.

As long as phone records are not private, then observing phone records, even en masse is not unlike a policeman standing on a street corner and observing the passing traffic of pedestrians and automobile drivers, and making inferences. Does that behavior look suspicious? Is that guy running down the street fleeing a crime? Or, jogging? Is that furtive look an indicator that that person is a shoplifter? a drug dealer?

What’s weird about this is that the policeman needs Verizon. It is as if the policeman has to go to the shopping mall, where people are spending their time, and get special permission, to observe the goings-on, in what is now the functional public square, but no longer, actually, public.

I appreciate the efforts to restore violations of the 4th amendment to the status of taboo, but I don’t think that will work as a ground of policy administration. We need fear. We need fear to work for us, instead of against us (meaning liberals), on these issues. Fear can protect a lot of stupid, and, frankly I expect that this trolling through phone records and the like — at the moment — amounts to a lot of stupid: analogous to making grandmothers take off their shoes and give up their nailclippers and family-sized shampoo bottles, in airports.

I don’t want to raise my blood pressure, trying to conjure up a fearful scenario of government stupid morphing seamlessly into repression. An easy script to write, but would it be revealing? Or, distracting?

I don’t fear the government. Government — the state, the public sector, public purposes — seems weak to me, hobbled. You don’t need Bayesian analysis to see the crooks, who brought down the global financial system, but the government is too palsied to prosecute them. In the story of Verizon feeding records to the NSA, I am more worried about Verizon. Our cellphones, supermarket affinity programs, credit and debit cards, etc. put an enormous amount of data into a weird kind of public private sphere. Just as we have moved from the public space of commercial main street, or high street, to the private (“private” as in proprietary to the corporations, not “private” as in private to the individual) world of the shopping mall, so has our data. Our lives are not secret; they are “private”, but not private.

We can raise a hue and cry, about the no doubt clumsy and artless efforts of our super-sleuths in government to make use of a vast sea of data, but I fear that all we will motivate in the end is further privatization. NSA may be a dark and mysterious Big Brother, but at least it is a public institution, with no obvious motivation to cheat or exploit me. But, NSA’s efforts to spot Waldo the terrorists, are not as worrying to me as Target Store’s success in spotting the newly pregnant shopper.

If phone records are not secret, and my phone bill is not my property — and it is not, under current law; even my dna is not mine — then, successfully invoking the 4th amendment will just serve to push all of this monitoring and inference into the for-profit private sector, alongside private security and prisons. Won’t that be nifty?

It seems to me that we should be pushing things in the opposite direction, into the public sphere. We should fear the movement of personal identification, property registration, judicial arbitration and the payments system into the private sphere, and see those as of a piece. We are drifting into a neo-feudal system, and all this data is in private corporate hands, which means the very system of personal identification, along with allied systems, like payments system or systems for property registration and adjudication, will also be in “private” hands. (“Private” in scare quotes because this the proprietary of feudalism, where governance is a private service provided by the feudal Lord, without a strong state or a concept of public space outside of the church.)

I’d like it to be the case that NSA has the data, and Verizon has to go to them to get it and put it together, and the scandal is NSA being too and free and easy in authenticating identities, that can be used to correlate information for data mining. I don’t like it that it is some bank that decides whether I own my house, not, as it used to be, a local register of deeds and a public court, where I had the same rights and presumptive right of action as the bank. I think the Federal Reserve should control MasterCard and Visa.

The nightmare scenario (here goes the blood pressure), to me, is when data monitoring merges with IP law, and we are all assessed the maximum for every song we listen to, every medical test and drug, and then turned into soylent green to discharge the student debt we incurred in kidnergarten.

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Anarcissie 06.08.13 at 5:05 pm

‘ … Is it truly unthinkable that the government collects and organizes such data to support legally-sanctioned use cases?’….

Everything is possible. In some cases it may, by chance, do so. Or they may be collecting it in order to support pink unicorns. Since the business is all mostly secret, we don’t know.

One classical question-apophthegm that has occurred to me as the present fandango has developed — I think I heard it from Karl Hess — is, ‘”Don’t ask “Why are they telling us this?” but ‘Why are they telling us this now?”‘

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Rich Puchalsky 06.08.13 at 5:22 pm

“In what respect do you think the procedures already in place to prevent abuse are inadequate?”

What procedures? You don’t know about any procedures to prevent abuse. Unless you have more knowledge of this program than I do?

You may well assume that there are procedures, or take the government’s word that there are procedures. But so what? When government employees were caught torturing people — certainly a more serious act than spying on them — they just destroyed the tapes and dared anyone to do anything about it. And no one did. “Procedures” without enforcement are meaningless.

And your entire attitude is authoritarian. So it’s been revealed that there’s a secret government program by which the government can admittedly read anyone’s Email. We know about 4 four slides from a presentation. How do know that there’s a system of oversight in place? Because you’re willing to take their word? They already lied, and will continue to lie. But you think that their word should be good enough, because they’re from the government.

Bruce: “But, NSA’s efforts to spot Waldo the terrorists, are not as worrying to me as Target Store’s success in spotting the newly pregnant shopper.”

Here’s where I think you’re wrong, Bruce. So Target spots the newly pregnant shopper. That’s annoying, but Target doesn’t have the ability to put her in jail. Look at our incarceration stats. The “weak” “hobbled” government currently has a comparable number of people in jail to the number held in the Gulag. Of course they aren’t powerful people: that’s part of the system.

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Consumatopia 06.08.13 at 5:39 pm

“That’s why these efforts are such a threat to civil liberties: they are essentially secret statistical models whose inputs are unknown to us and which can be manipulated to get almost any result.”

I guess statistical models are basically the equivalent of drug sniffing dogs.

It’s even worse than that, though. Bayesian analysis, even honestly applied, can take you to illiberal places. Everything from racial profiling to IRS “BOLO” orders. I suspect that explains why the government not only insists that it be able to see this data, but that no one is allowed to know how it uses it. If we did know, some of us wouldn’t like it.

Some people *would* like it, though. As far as terrorism goes, the average, “boring” American would probably want the government to look at their metadata, all the better for the feds to know that they’re a “regular” person, not one of those Muslims. And they want the government to look at that data secretly–otherwise, Muslims would start complaining and it would make us look terrible.

This is the problem (or advantage, I guess) of secret courts and congressional oversight by classified briefings. The absence of public scrutiny completely changes someone’s incentives.

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William Timberman 06.08.13 at 6:23 pm

Bruce Wilder @ 82

Whether it’s Verizon or the government tracking everyone doesn’t seem to me to matter very much. The point of all this monitoring is to influence or control the behavior of people — defenseless people in terms of the technological means being deployed against them — who might, if organized, inconvenience the organizations doing the monitoring. If you’re a manager, or a liberal, you call this rational prioritization. Only a dirty hippy would call it administrative paranoia.

As for me, I’d call it the modern condition, I suppose. I’d even admit that the reasons we’re given for it seem plausible enough at first glance, e.g. If we know what you’ve bought in the past, we can produce more of what you’ll want in the future, and at the same time increase our profits, or, if we can figure out who’s going to protest at a meeting of the G-20, we can lock them all up beforehand, thereby reducing the municipal police bill, reduce property damage in the city center, and permit people to get to and from work on time.

The collateral damage to civil society can be left to the imagination of worrywarts like Glenn Greenwald. (To use a ridiculous example to illustrate Greenwald’s sublime concerns, I’m frequently annoyed by the fact that I don’t fit the demographic represented by the majority of the shoppers at my local supermarket. With a fully developed system of discount-card inventory tracking in place, things which don’t sell in volume in this market don’t remain very long on the shelves, which means that my fondness for Belgian endive, say, or obscure varieties of imported beer, is never indulged for longer than the week or so that it takes to remainder a new product that doesn’t move off the shelves at an optimum rate. Asking that such a product is kept in stock invariably falls on deaf ears. I’ll pass along your request to corporate is the best I’ve ever managed by asking.)

There’s no point going any further to explain why this is a lamentable state of affairs, and no point in thinking too strenuously about what to do about it as long as a majority is comfortable with it. For the moment, I’ll even concede that as long as you’re not Abdul Rahman al-Awlaki, or Julian Assange, you’ve probably got nothing to worry about. I definitely would remind everyone, however, that the long-run implication of this state of affairs is best expressed by a quote from Blade Runner: You know the score pal — if you’re not cop, you’re little people….

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novakant 06.08.13 at 6:33 pm

I’m stating that there is a system of legal constraints and oversight in place

BS, there is no oversight – Obama just invoked the military and state secrets privilege, I wonder why?

Is there an allegation by anyone familiar with the program, including the leaker, that it is aimed at collecting information from “ordinary citizens”?

I thought all citizens had equal rights.

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Mao Cheng Ji 06.08.13 at 6:39 pm

“Perhaps you don’t like the word “illegal” because only those in power get to decide what the law is.”

Exactly. Nixon got it almost right: when the establishment (the president, the congress, and the supreme court, all together) does it, it’s not illegal. It can’t be.

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Andrew F. 06.08.13 at 6:46 pm

Rich, re procedures and oversight:

You raise a fair point, that we don’t know with certainty what procedures and oversight would be legally required for the program. I had written with the assumption that the program had likely been authorized under FISA – and that law, as it currently stands, would likely require the implementation of “minimization procedures” to reduce the probability of accidentally collecting private information from US persons, to require oversight and reporting, and to require new judicial authorization at certain intervals.

If I am correct in that assumption, then there would be three branches of government involved, two of them extensively. The judicial branch would have a recurring opportunity to determine if the program in place, and the minimization procedures used, are legal and adequate. That doesn’t mean that what the executive submits will always pass scrutiny; it doesn’t even mean that what eventually passes scrutiny would be, in fact, legal under a fair interpretation of the law; but it does diminish rather significantly (imho) the odds that programs and procedures, post review, would remain in illegal form.

But, it is possible that the nature of the collection may be such that it has occurred outside the boundaries of FISA, though in that event I would guess that the collection occurred outside the United States.

I’m not sure what your point is regarding the destruction of interrogation tapes. Government employees sometimes break the law? Sure, of course. Does this mean that the executive thinks it can do what it wants with impunity? No, of course not; they didn’t believe that in the case of interrogating al Qaeda leaders after 9/11, and they’re certainly not going to believe that in the case of electronic surveillance programs. Do we still need judicial review of such programs, and reporting to Congress? Yes, absolutely, because sometimes government employees either outright break the law, or indulge in highly questionable interpretations of the law, and such oversight and information sharing reduce the probability of either.

In any event, my guess is that we’ll find out more about PRISM in the days ahead.

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Bruce Wilder 06.08.13 at 8:00 pm

Rich Puchalsky: Here’s where I think you’re wrong, Bruce. So Target spots the newly pregnant shopper. That’s annoying, but Target doesn’t have the ability to put her in jail.

There’s this box conservative libertarians have built for us, in which power is a zero-sum game, and reducing the power of the state somehow protects us and makes us more powerful. I don’t think it works that way. I gave the example of Target and pregnant ladies, because it was an example of a data-mining result that received some attention in the news recently and was kind of humorous.

The darker uses of personal data, held in private (aka corporate business) hands have become ubiquitous. There’s the MERS database, used by big banks to track the securitization of real estate mortgages; it is well on its way to becoming a real estate registry, handing the banks the authority to determine who owns a house or who owes very substantial debts. There are the credit bureaus, whose data is regularly used now to screen job applicants. There’s the growing use of debit cards for the unbanked, channelling even government benefits through the hands of private banks. Then, there’s the whole murky world of intellectual property, in software, drugs, and various cultural productions.

The “right of the people to be secure in their persons, houses, papers, and effects” rests on a common law notion that a man’s house is his castle, in which he has sovereign control of things in his own possession. In our brave new digital world, it is not clear that one is even in possession of one’s own identity. Certainly, you are not in possession of your phone records or your bank records; they are the property of the phone company or the bank. That’s a problem.

In the three-way dance between the individual, the state, and business corporations, a weakened state is the servant of business corporations, which may be secure enough in their possession of information about you, but I see that as making the underlying problem worse, not better. We may want the government to have to knock on the front door, before entering, but where’s the front door and whose front door is it?

If Verizon is free to do as it will, with data about you, but protected from the government taking the data, where does that leave you? It strengthens Verizon’s power; it has the data and can do as it pleases. The government’s power and capacity is diminished; the government is more dependent on the business corporation than ever before, for information. If the government is making decisions about you — what your credit history is, your criminal history, whether you own property, whether you have educational or professional credentials, your medical history, reading your DNA to inject a bit of futurism — based entirely on private companies say they know about you, and acting as governments do, is the power with the state or the private business corporations?

If the outcome of our moral panic over PRISM is some constraint on government or a diminishing of public capacities, which simply increases the “private” power and scope of business corporations, I don’t see that as a step forward. It isn’t enough to constrain government in these cases. The possession and control of the source data has to move, in some virtual sense at least, into the individual’s hands, where the individual has some real potential to constrain Verizon, as well as the government. Your phone bill and calling history has to become something which is among the papers and effects of the individual.

I see this as revolving around the issue of establishing a public, i.e. governmental, system for individual identification, authentication and limited self-disclosure, tied to a publicly-controlled payments system. Privatization of payments and identification is a root problem.

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Ronan(rf) 06.08.13 at 8:45 pm

Yes Target doesn’t have the ability to put you in jail, but Target also doesn’t have the incentive to. It has the incentive to keep you out of jail, and sell you shit. Which is (I assume) the primary reason Target captures customer data.
These functions of the State, however (even when outsourced to private companies), are incentivised to lock you up. Its written into the operating manual.
By extension the data banks capture has any number of different uses, some good some bad.
I don’t know how useful this public/private distinction is..

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Rich Puchalsky 06.08.13 at 8:51 pm

“I’m not sure what your point is regarding the destruction of interrogation tapes. Government employees sometimes break the law? Sure, of course. Does this mean that the executive thinks it can do what it wants with impunity?”

The point is that they did just break the law, and they did just do it with impunity. Everyone knows about this incident, and nothing can be done. On previous occasions when spying hadn’t been authorized under FISA or any other program — people found out, and nothing could be done. The presumption at this point is not that a newly discovered secret program is “following procedures”. The presumption is that they are doing whatever they want, secure in the knowledge that when it is found out, nothing will be done.

As just happened when Obama invoked the military and state secrets privilege.

Bruce: “There’s this box conservative libertarians have built for us, in which power is a zero-sum game, and reducing the power of the state somehow protects us and makes us more powerful. “

The state and business work together: business (and powerful oligarchs of all kinds) capture the state and use it. For that matter, “individuals” — if you generalize them into groups of people that are not part of the state, or part of business — are hardly averse to using their power to oppress others. If you’re looking at why the U.S. has the world’s highest incarceration rate, you can blame government, you can blame business (all those companies building prisons and using prison labor, and lobbying for it), and you can also blame the people who liked the idea of stricter sentences, perhaps because like Trader Joe they give a “quiet cheer” whenever they hear about bad people being locked up, perhaps because they think it keeps black people in line. And you can also blame the sainted unions — the California prison guard unions, for instance.

But after all that, you still arrive at the fact that we live in the country with the highest incarceration rate in the world. It’s not all a conservative fantasy, propounded so that the government will have to get out of the way of the so-called job creators. In another recent thread, you wrote about how we had to be able to listen to populist voices — well, there’s a huge amount of resentment against the police state. Some of that is from 1%ers who want to privatize everything, but some of that is for very good reasons.

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Eric H 06.08.13 at 8:57 pm

@16 (and several others)

“how effective can a program like this be in its stated aims under near perfect conditions”

100% effective, if you already have the person you want to convict, are willing to adjust the definition of “terrorist” or “criminal”, and can then manipulate backwards thru Texas Sharpshooter statistical manipulation, ala Michael Mann’s Nature Trick. For example, this ACLU bit. The world and its actors, especially when they have power, are not static.

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Andrew F. 06.08.13 at 9:15 pm

Apparently we’ll learn about PRISM even earlier.

Portions of the program are now declassified. Here’s the statement today from the DNI on the subject: PRISM Program

Rich, that statement confirms my earlier points regarding procedures that would likely be in place for the program. With respect to your last post, that no one was prosecuted for the interrogation program does not mean that “nothing happened.” It’s also not the case that simply “nothing happened” in the case of the “warrantless wiretapping” program. No one wants to be the target of Congressional or criminal investigations, or even tainted with the name of a program that attracted so much negative attention. The enormous legal preparation that preceded the interrogation program, and likely accompanied the surveillance program, also demonstrate that the law isn’t something which the executive can blithely ignore. This is NOT to say that the executive never breaks the law; it is to say that there are some pretty serious incentives to not break laws in place, not least of which is the presence of incentives others have to exact a price for doing so.

As to Bruce’s broader points about information privacy, I tend to agree with them. The US model for handling information privacy as a subject for case by case negotiations between companies and consumers is not working. There has been some movement to change that in the US, and also in the EU (which has advanced further than the US). It will be interesting to see if this story has any effect upon those efforts.

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Rich Puchalsky 06.08.13 at 9:21 pm

“Portions of the program are now declassified. Here’s the statement today from the DNI on the subject: PRISM Program”

Let’s assume that that document is all lies. There’s no way that we have of knowing whether they are telling the truth, and they have every motive to lie.

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Ronan(rf) 06.08.13 at 9:34 pm

Andrew, surely the torture program is an example of how contingent the ‘legality’ of these programs is. As you say, it was the subject of ‘enormous legal preparation’, but then you left out the end of that sentence .. ‘which was shown to be largely erroneous’. Do you not know how the program was challenged?

http://www.jadaliyya.com/pages/index/2053/the-legal-campaign-against-american-torture

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Yarrow 06.08.13 at 9:38 pm

Let’s assume that that document is all lies.

Yes. Particularly since essentially every reassurance in it has just been asserted of the demand for all Verizon’s metadata. “We’re asking for a narrow, focused slice of information (i.e. everything), under the unrelenting scrutiny of a lapdog court and gagged legislators. What are you so upset about?”

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Suzanne 06.08.13 at 9:50 pm

@11: ” Anyway, kudos to the New York Times for nailing it in the first paragraph”

The NYT isn’t so bad at fourth paragraphs, either:

http://www.nytimes.com/2013/06/07/us/obamas-strong-embrace-of-divisive-security-tools.html?_r=0

“Whatever his ambivalence about what President George W. Bush called a global war, Mr. Obama has used some of the same aggressive powers in the name of guarding national security even, in the view of critics, at the expense of civil liberties. Rather than dismantling Mr. Bush’s approach to national security, Mr. Obama has to some extent validated it and put it on a more sustainable footing.”

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Andrew F. 06.08.13 at 10:04 pm

Did you read the document Rich?

PRISM apparently doesn’t involve direct taps of servers and doesn’t involve data-mining. It’s a pretty stark refutation of the more dramatic aspects of stories in The Washington Post and The Guardian, and confirms some of the practical skepticism in other comments on this thread about the reporting of the program.

Your assumption that the statement is “all lies” is based on… ? I’m sensing an “it’s cover ups all the way down!” (cf. turtles) logic to your approach to this. There are lots of reasons for the DNI to NOT issue a statement that is “all lies” about a program like this, not least of which is the high probability of exposure.

Ronan, remember that the interrogation program did not involve the same level of checks and supervision from other branches that electronic surveillance programs do. Those checks and supervision reduce the probability of such a stretched interpretation of law standing up long in practice (though they don’t, and can’t, reduce the probability to zero).

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Matt 06.08.13 at 10:13 pm

It is in a way comforting that the security establishment is striking so many secret deals with large Internet companies, because it suggests that tapping telecoms isn’t enough for the NSA; strong encryption still thwarts anyone trying to operate an information dragnet without insider collaboration. A nerdy technical plea: can Crooked Timber please support HTTPS connections? I see that you are on Dreamhost, so it would cost an extra $43.15 per year to get the necessary dedicated IP address: http://wiki.dreamhost.com/Secure_Hosting

I would be happy to contribute to the cost. Encrypted web communications do not enhance privacy if the NSA has negotiated special access inside the secure perimeter, as it has allegedly done with Skype, Facebook, Google, and so on. But if there is no special insider arrangement, it restricts security services to collecting metadata like “IP address X sent requests to crookedtimber.org and received responses at the following times…” rather than actually seeing which articles you read or comments you posted*. It is important to establish a norm that electronic communications should be secure by default, not just secured for special occasions like sending credit card numbers or plotting the overthrow of the government.

If anyone in the relevant capacity takes my advice to heart, I would also suggest that you stick with a self-signed certificate rather than one purchased by a certificate authority. This will cause more browser warnings but is actually more secure than the browser-trusted certificates you pay money for from an authority, when the threat model is a secret government agency hoovering data from everywhere and anywhere. It would be unsurprising if the NSA can get secret copies of certificates provided by “trusted” commercial authorities under the same spirit of everything-goes-for-national-security that led to the phone records and PRISM programs in the first place.

*Not entirely true: even without being able to see the contents of communications, you can statistically correlate the size and timing of data exchanges to infer what someone was probably reading or even identify likely comment authors. But this requires more computing resources. The goal should be to make opportunistic spying more difficult, if not completely impossible.

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Ronan(rf) 06.08.13 at 10:38 pm

“Those checks and supervision reduce the probability of such a stretched interpretation of law standing up long in practice “

Well there’s already evidence that those ‘checks and supervision’ might have failed vis a vis Verizon

http://epic.org/FISC-NSA-domestic-surveillance.pdf

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Consumatopia 06.08.13 at 10:59 pm

No one wants to be the target of Congressional or criminal investigations,

Which is the point of classified briefings–to make sure that Congress is complicit in any wrongdoing (e.g. Pelosi and waterboarding.).

or even tainted with the name of a program that attracted so much negative attention.

It’s pretty easy to come up with new programs trying to do the same thing. Data mining metadata might not be called “PRISM” or “Total Information Awareness”, but it’s still data mining.

PRISM apparently doesn’t involve direct taps of servers

Where does it say that? It claims that any collection of information permitted by Section 702 of FISA is under the supervision of FISC. I don’t see anything that indicates how that information is collected. “Service providers supply information to the Government when they are lawfully required to do so” could mean anything, including a direct tap–nothing seems to indicate that manual intervention (or even any awareness that its happening at any given time) is required on the part of the service provider.

I must wonder–once PRISM capability has been set up, could the government use laws other than Section 702 of FISA to justify using it in any given instance? Even if not, it’s not hard to see potential wiggle room in interpretations of “intentionally target any person known to be in the United States”.

It’s pointless for the law to be made public when the interpretation is kept classified. You shouldn’t have to imagine any sort fractal turtle hierarchy to see that.

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Consumatopia 06.08.13 at 11:46 pm

OTOH, despite my skepticism of government spying, I think I agree with Bruce Wilder that the private databases are worse. Certainly that’s the case if you’re worried about rogue actors misusing information for personal reasons–when I was a kid, my father knew someone who worked for the phone company that had a habit of listening to his wife’s conversations. This only became apparent because one time he felt compelled to break in on the conversation and contradict her on some point.

That we don’t have any interest in bringing that the most ridiculous abuses of private databases under control is a very bad sign for reform in either the private or public sphere. And even if legislators wanted to, it’s not clear that the courts would let them.

Then again, there probably are some people overseas who would rather the NSA and Google have access to their data than their local government. If payments and identities were nationalized rather than privatized, I’m not sure that would be a net improvement in freedom or privacy globally.

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Ronan(rf) 06.09.13 at 12:16 am

But that doesn’t *only* apply to private telephone companies. I’m sure the same intrusions of privacy existed in the old state monopolies (having worked at a private telephone company when younger I do agree that there’s no protection of privacy from the staff – at least in my experience – but plenty of data privacy regulations in general. I’m just not sure it’s an example of private abuse of power. I also agree that this is probably something the resonates more widely with people, who are going to more likely be the victims of this petty personal intrusion rather than victimised by the state..but still, the stakes are much lower)

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Matt 06.09.13 at 12:32 am

If the outcome of our moral panic over PRISM is some constraint on government or a diminishing of public capacities, which simply increases the “private” power and scope of business corporations, I don’t see that as a step forward. It isn’t enough to constrain government in these cases. The possession and control of the source data has to move, in some virtual sense at least, into the individual’s hands, where the individual has some real potential to constrain Verizon, as well as the government. Your phone bill and calling history has to become something which is among the papers and effects of the individual.

If the data is under the individual’s control only “virtually,” i.e. by statute, we’re back to the same old problem of powerful agencies doing whatever they like, either by creative exploitation of legal loopholes or by simply daring anyone with real power to prosecute their crimes. The snoops usually win that bluff. Few politicians are willing to hold fast against unreasonable law-enforcement methods after the magic words “terrorism,” “illegal drugs,” or “child pornography” have been uttered. There needs to be some combination of structural control and operational transparency to ensure that today’s promise of privacy isn’t going to be immediately hobbled by another secret court or legal interpretation just like yesteryear’s was.

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Tony Lynch 06.09.13 at 12:42 am

I don’t think Andrew F passes the Turing Test – but I’m sure they’ll keep working on it.

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Martin Bento 06.09.13 at 12:43 am

One of the problems with invoking a “police state” as the endpoint of this is that people think they know what that looks like – East Germany or Chile under Pinochet – and that is not where we are likely to end up. Look at the FBI under Hoover. In many ways, it behaved as the apparatus of a police state – large-scale monitoring, punishing, sometimes framing or executing dissidents, keeping blackmail files on politicians. But to claim the US was a “police state” in the classic sense during this period would be gross exaggeration. Within the US and similar countries, the secret police apparatus seems to operate within a sort of Coase boundary – doing only what it does best (in the judgment of the elites, with the secret police themselves being a division of the elite that gets a weighted vote), rather than having its active finger in everything. The police state is instantiated when needed, but is not omnipresent and does not interfere with the ordinary rule of law, nor with the uneasy compromise between democracy and plutocracy that is the “system”, unless the stakes pass a certain threshold, which they typically don’t. So the police “state” is, in a sense, not the “state” nor the “society” itself, but a floating domain within the society where the rules can be suspended at the will of the elite. Of course, if you can choose when you get to break the rules, they are not really rules for you, but they may appear to be so in everyday matters.

Now technology enables this always potential police state to be omniscient without being omnipresent in the sense that its presence can actually be felt. This has always been a holy grail – to observe without transforming what you observe. In the communist societies, huge swathes of people were employed to surveil the rest, which meant the fact, general nature, and many times specifics of the surveillance could not be kept hidden. It relied on too many agents of highly imperfect competence, honesty, and loyalty. To some degree, the watchmen could be watched or at least detected. Now we face the prospect of a police state that will always be watching, but only be active when the stakes for the elite are high. It will be much harder to muster opposition to such a thing and it will not necessarily look like a classic “police state”, making it much easier for opposition to be characterized as “paranoid”, especially as the police state will almost always be merely potential – even when instantiated, it will recede to a potential state as soon as possible.

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Consumatopia 06.09.13 at 12:47 am

Contra myself @102, leaks from tech companies seem to suggest that that compliance with FISA orders is a manual process.

http://www.nytimes.com/2013/06/08/technology/tech-companies-bristling-concede-to-government-surveillance-efforts.html

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Rich Puchalsky 06.09.13 at 1:35 am

“I’m sensing an “it’s cover ups all the way down!” (cf. turtles) logic to your approach to this.”

Nonsense. Obama just claimed that we can’t have any definitive knowledge of the program because it’s a military or state secret. Are you saying that our security agencies refuse to lie to protect military or state secrets? Then they must be in the wrong job.

“With respect to your last post, that no one was prosecuted for the interrogation program does not mean that “nothing happened.” “

Oh no, some lawyers may have had sleepless nights. Maybe they scheduled an extra meeting. The horror… It’s too bad that those people our government tortured couldn’t just keep quiet about the whole thing. Don’t they know the mental stress that our agents went through when they destroyed the tapes and wondered whether anyone would punish them? That must have been torture!

111

Rich Puchalsky 06.09.13 at 1:46 am

Martin Bento: “One of the problems with invoking a “police state” as the endpoint of this is that people think they know what that looks like – East Germany or Chile under Pinochet – and that is not where we are likely to end up.”

All of the things that you wrote are true, but … look, interpretations aside for the moment, the incarceration rate is a social fact. Unless you believe that Americans are inherently more prone to criminality than people elsewhere, we are creating criminals via enforcement. You can certainly say that it doesn’t look like a classic police state, in that menacing guards will not ask for your papers (unless you live in Arizona). People will not be “disappeared” and dropped out of airplanes. But it still functions as a police state in the important sense that it’s designed to lock up 50% more people than anywhere else. (Well, actually, North Korea may have the same rate.)

That’s why the “at least we don’t use Stasi tactics” things are — well, probably written by white people, though of course I don’t know, but kind of foolish in any case. If you’re looking around the world for police states, we’re it.

112

Dr. Hilarius 06.09.13 at 2:36 am

Prior posters have noted that “legal” is a slippery term when used by government agencies and politicians. Nixon wasn’t very sophisticated, he just asserted that whatever he did was legal. Now, we have people like John Yoo to draft a memo opining all is legal. The fact that the memo doesn’t pass the laugh test doesn’t matter. We don’t even get to see the memos. The legal reasoning itself would somehow aid the enemy. It’s trust us because you don’t have any other choice. Secret courts without review are not meaningful, it’s a pretense of due process.

As for oversight, there is little reason to think that members of Congress on various intelligence committees get the whole truth. But even if they know something, they can’t talk about it. We drift ever farther from democratic self rule as the day-to-day business of government is removed from public discourse and ceded to classified agencies.

113

Bruce Wilder 06.09.13 at 2:59 am

I loved Jon Stewart’s paraphrase of Attorney General Holder: “Due process is the process we do.”

114

Bruce Wilder 06.09.13 at 5:15 am

Matt @ 105: If the data is under the individual’s control only “virtually,” i.e. by statute,

You said what I intended better than I did. When I said, “virtually”, I meant to refer to the architecture of data structure as something that complements the mandate of law, in the way a door and a lock complement the traditional application of the 4th amendment. Without that kind of reinforcement, it is too easy for the law to become little more than a combination of far-fetched metaphor and ritual.

Martin Bento @ 107

I was reminded of this classic emptywheel post
http://www.emptywheel.net/2013/02/19/what-a-targeted-killing-in-the-us-would-look-like/

Hopefully, the link doesn’t make CT a target of the not-s0-latent police state.

115

Frank Shannon 06.09.13 at 8:27 am

I haven’t written anything in a while, but I feel like I have to say something about the recent PRISM/NSA stories.

META: I think this is an improvement over the previous 3 bullshit Obama scandals. Even if its not really a scandal or even news really, it is still a story that deserves some attention.

I can’t remember all the back story that I’m aware of but I do remember a bit. I first became aware of the general shape of the thing somewhere around 2005 I think. There was a POOR MAN post about data that also talked about people in the Bush administration threatening to resign over the, then without any legal cover, program and people trying to get Ashcroft to sign off on it in his sickbed.

In 2007 there was the washington post story about how the NSA had installed splitters in a trunk line (fiber optic) for sweeping up internet communications.

Which lead to my insight that maybe the NSA doesn’t have a “back door” they just get copies of the latest proprietary software from facebook et al so that all that traffic they are sweeping up( ie all of it) makes more sense.

116

derrida derider 06.09.13 at 8:54 am

Yawn. For years people working in a non-US civil service, even in a country that is a close US ally, have been told that anything that goes over the internet, encrypted or not (SOMEBODY is buying all those supercomputers …), is at risk of being read by “a foreign power”. Certainly anyone involved in trade negotiations is conscious of it.

If it’s common knowledge in civil services you can bet the likes of al quaeda are aware of it and acting accordingly. Even thoroughly incompetent wannabe bombers living in their parents’ basement must be aware of it. So the NSA is not going to pick up much.

117

Andrew F. 06.09.13 at 11:08 am

Consum @102 – the opening sentence in the DNI’s statement is the most interesting, where he states that PRISM is not a collection program, that it’s an internal program, and that it’s used to facilitate actual collection efforts. Along with his other statements, this suggests what some journalists with deep experience in this area have already guessed: PRISM is likely a computer program that NSA analysts use to bring together, organize, and analyze data from different collection efforts.

As to the question of whether the government could start a collection effort under FISA procedures, and then continue the effort without continuing the FISA procedures, the answer is no.

Rich, yes, and now certain facts about the program have been declassified. You claim that the government’s statements regarding those facts are “all lies.” To me, the incentives not to issue a public statement regarding this issue that is “all lies,” particularly when it’s clear that someone with actual knowledge of the program is out there leaking documents, are rather clear. Less so from your perspective, I assume.

Is there anything the government could say that would cast doubt on your thesis Rich? My sense of the logic you’re using is: “if the statement conflicts with my thesis, it’s a lie; if it doesn’t conflict with my thesis, then it may not be a lie.”

As to the enhanced interrogation program – there were numerous criminal, internal, and Congressional investigations; criminal prosecutions; resignations; a fair number of careers were certainly given an early expiration dates; and it was at a minimum uncertain as to how far the prosecutions would go. If you were a career CIA officer who liked your job, would you want to be anywhere near a program with that kind of fallout? I’m not sure how you draw from that affair the conclusion that, in the case of electronic surveillance programs subject to judicial review AND subject to Congressional disclosure AND subject to clearly stated statutory requirements, the government is almost certainly abusing these programs as tools of “social control.”

Outside of making the programs and the FISA courts’ opinions public, I’m not sure what additional oversight can be added here.

118

Rich Puchalsky 06.09.13 at 12:05 pm

“Is there anything the government could say that would cast doubt on your thesis Rich? My sense of the logic you’re using is: “if the statement conflicts with my thesis, it’s a lie; if it doesn’t conflict with my thesis, then it may not be a lie.””

Remember what Bruce wrote about adversarial processes? I’d believe evidence that civil rights lawyers have had a chance to look over. I see no reason to believe anything that government officials say out of the goodness of their hearts as part of damage control PR that there is no way for anyone to check up on and that conflicts with known incidents that have emerged recently.

You might as well say “How could you believe that the highest officials of the U.S. government would provide false evidence about WMDs in order to get us into a major war? They’d be sure to be found out, and you know what it would do their careers?” But it actually happened. I know that you’re trying the time-honored tinfoil hat thing, but really, you’re sounding more and more delusional. You can’t keep on opposing your blanket insistence that these things don’t happen to well-known recent evidence of events exactly like them happening.

119

Ronan(rf) 06.09.13 at 12:27 pm

What about the Verizon case Andrew, which does appear to be a ‘stretched interpretation of the law’ and which took place with congressional and judicial approval for 6/7 years?
More on how PRISM works

http://techcrunch.com/2013/06/08/cooperation-methods-protected-innocents-from-prism/

120

Rich Puchalsky 06.09.13 at 12:31 pm

“If it’s common knowledge in civil services you can bet the likes of al quaeda are aware of it and acting accordingly. Even thoroughly incompetent wannabe bombers living in their parents’ basement must be aware of it. So the NSA is not going to pick up much.”

Which is why that’s not really the point. Now that the national security bureaucracy has this wonderful ability to access every Email (and probably soon most phone calls — voice over IP is becoming more and more common) with permission to copy every one of them to its data center in Bluffdale, it’s going to start percolating downwards through the system. First it’ll start with domestic terrorism, then domestic notorious crime, then domestic plain old crime. No one at any stage is going to be willing to stand up against “But if we hadn’t used the data, these [Boston bombers / child porn ring / kidnappers] would never have been caught.”

One of the common things that people on the left have been performing in threads about this is world-weary cynicism. “Oh yeah, I knew about that years ago. Everyone did. What’s the big deal?” That is, of course, fall more effective than what Andrew F. is writing if you want the public to accept this.

121

Rich Puchalsky 06.09.13 at 12:33 pm

Should be “far more effective” above. Typed far too quickly.

122

Consumatopia 06.09.13 at 12:59 pm

“the opening sentence in the DNI’s statement is the most interesting, where he states that PRISM is not a collection program”

He said it wasn’t an undisclosed collection program, that it was authorized by FISA. And what counts as “internal” isn’t really any meaningful distinction–once data touches a government computer it could be called “internal”, and there are apparently government computers on site at some of these companies.

There’s too many potential loopholes, and we have no idea how they’re being interpreted. That Congress is informed of how the law is being interpreted makes things worse, in my view–it means that legislators can verify that no stakeholders they care about are threatened, but not have to worry about what the public would think of them.

That said, I do notice that government officials are a lot more interested in talking about PRISM than about phone metadata.

123

hix 06.09.13 at 1:27 pm

And of course the NSA collects such information. Undoubtedly, so do the intelligence services of any nation with the technical capability of doing so.

No absolutely not. Those crazy technical surveilance programs are only typical for authoritarian governments, that try to scare off democratic organisation at home with compelete disregard for costs.

The German secret service has 6500 employees. The IT infrastructure for such a surveilance system alone most require a multitude. Then someone must try to make use of that indiscriminate collected data. Now that requires so many people that the overall US intelligence budget exceeds the entire military budget of other high developed nations. Snooping to pre organised public data often gets better results.

Even putting the very real risk that such an organisation poses a threat to democracy and lobbies for policy responses that are of outright negative value for achieving the claimed goal (drones vs terrorism really…), the cost return tradeoff for such a system just does not make any sense. The same money spent on public transport or healthcare would save a multitude more lives, even if that organisation would work perfect.

124

GiT 06.09.13 at 3:55 pm

Is sexual innuendo made at a 4th grade level really what shocks the bourgeoisie in the 21st century? Consider this bourgeois underwhelmed.

125

GiT 06.09.13 at 3:55 pm

Is sexual innuendo made at a 4th grade level really what shocks the bourgeoisie in the 21st century? Consider this bourgeois underwhelmed.

126

GiT 06.09.13 at 5:00 pm

Well that ended up in the wrong place… twice! Sorry. Feel free to throw all three in the virtual rubbish bin for tidiness’s sake.

127

lupita 06.09.13 at 8:42 pm

Almost all the complaints about PRISM have been about the lord of the manor abusing his powers, not about manorialism itself. Even Ed Snowden accepts the global system presided by the US since he did not want to undermine its power by revealing all its spy stations around the world. When he says the “public should decide”, he clearly means the American public should have input as to how the US should exercise global power without inconvenience to its citizens. It is like the daughter of the lord of the manor wanting more input as to how many balls she is permitted to attend while her dad’s tenants are obligated to make her bed, dress her, feed her, and attend to her whims.

I doubt the “public will decide”. Most likely, the whole system centered on US internet companies and servers in the US will begin to be dismantled by the likes of India, Brazil, Russia – even European countries, that it, the “foreigners”.

The US has abused its manorial privileges. I say this as a tenant.

128

themgt 06.09.13 at 9:33 pm

White House Petition to Pardon Edward Snowden: https://petitions.whitehouse.gov/petition/pardon-edward-snowden/Dp03vGYD

129

Anarcissie 06.09.13 at 10:52 pm

@120: Saying ‘We knew about this a long time ago’ might mean, in some contexts, ‘Now that you’ve gotten caught up, what do you think we should do about it?’

@127: While Russia, China, India, etc., may wish to get the U.S. out of their business, they may well be perfectly okay with the transformation of the U.S. into a totalitarian state. Indeed, their ruling classes may find it reassuring.

130

Indian 06.09.13 at 11:35 pm

@129- China is a totalitarian state. Russia is too controlled by oligarchic interests. But India is different. I don’t know if something like this would ever happen in India because the government is both corrupt and inefficient. Even if they decide to do it, it is likely that the idiots in charge will get past parsing the meaning of the word ‘metadata’. But more than that, the judicial system is actually quite decent, especially on major policy issues. The check-and-balance system offered by the judiciary actually seems to (somewhat) work there.

131

Rich Puchalsky 06.10.13 at 1:26 am

Before we get to Snowden, digby reminded me that the DNI, Clapper, who Andrew F. quoted above as a reliable source is the same person who claimed that Iraqi WMDs weren’t found because they’d been moved to Syria.

That’s pretty much perfect. It disposes at once of both “How could a high official lie?” and “When officials lie and are found out it’s a career killer”, with a side order of “How could anyone believe the statement is all lies when nothing like this has happened before?”

132

Rich Puchalsky 06.10.13 at 1:34 am

As for Snowden, I’m glad to see that there are enough young people in America who actually believe in its supposed values to make it so that the security state can’t keep these secrets. They’re going to have to find authoritarian thinkers to run their tech, and that’s not as easy as it is for their other operations.

133

Trader Joe 06.10.13 at 12:40 pm

Since he’s effectively a deserter in the Cyber-wars, perhaps they’ll build Snowden a statue.

He’s a ‘real time’ example of the recently held thread about when desertion could be justified and when it should be held to be a crime. Its rather difficult to condemn exactly what he did, which at minimum opens the curtains on some dark rooms, though I’m sure he will be in some quarters.

134

Ronan(rf) 06.10.13 at 12:52 pm

There was quite a nice post about whistle-blowers here:

http://www.cnas.org/blogs/abumuqawama/2013/05/leaks-politics-and-power.html

On the formerly abysmal abu muqawama blog at the generally abysmal CNAS

135

Barry 06.10.13 at 7:04 pm

“That’s pretty much perfect. It disposes at once of both “How could a high official lie?” and “When officials lie and are found out it’s a career killer”, with a side order of “How could anyone believe the statement is all lies when nothing like this has happened before?””

Long before this point, those who make arguments such as Andrew F did are beyond a reasonable doubt fools or liars. They’re invoking what would not happen in a perfect world as an argument that it’s not happening in the real world.

136

Andrew F. 06.10.13 at 8:39 pm

Rich, first, you seem to continue to think that PRISM involves unrestricted access to any and all emails – a point contradicted not only by every government official to speak about the program, but a point contradicted by the leaker himself.

Second, as I’ve said repeatedly, government abuse can occur and does occur. The question is whether there are adequate procedures and oversight in place to minimize that occurrence.

That government deception has occurred is not a good reason for thinking, therefore, that government deception is always occurring. The various assertions made about Iraq WMDs in 2003, and the recent statements on a subject about which the government has perfect knowledge, which is reviewed by the courts, which is known by Congress, are two very different cases. Seeing distinctions like that is not being gullible; rather it’s what enables us to roll our eyes at the birthers who claimed that Hawaiian officials were lying about the President’s birth certificate.

In the case of PRISM, not only are there three branches of government involved, including one whose members have lifetime tenure and are not beholden to anyone, but there are also opposing political parties involved.

I can see reasonable arguments for making the process of review more robust – perhaps by adding a devil’s advocate to the proceedings, or perhaps by expanding the amount of legal interpretation that may be released to the public. But it strikes me as almost paranoid to choose to believe that every statement by government officials on this subject is a lie, regardless of the circumstances. I’m not sure why you would believe what attorneys from the ACLU would tell you about any evidence they were shown either; after all, the government would be producing the evidence, and the government, according to you, would be lying.

137

Jim Henley 06.10.13 at 10:50 pm

In the case of PRISM, not only are there three branches of government involved, including one whose members have lifetime tenure and are not beholden to anyone, but there are also opposing political parties involved.

This is just beyond asinine. As Rich and others have pointed out, it means literally nothing that there are “three branches of government involved.” Judge-shopping means you get to pick your arbiter ahead of time, both on the macro scale – appointment to the FISA court – and the micro (who you go to for any given warrant). Gag orders mean that anything you tell a bare handful of legislators who get informed stops with them: they literally cannot act on the information. That’s not “oversight.” That’s either pornography or taunting.

As Rich also noted, only public, adversarial processes come close to providing a check on abuse, whether abuse under color of law or abuse coloring way outside law’s lines. The FISC is a star chamber by design, and the Gang of Very Few Congresspeople is formally neutered in their function.

138

Andrew F. 06.10.13 at 11:41 pm

Jim, a few points for you:

1 – The Permanent Senate Select Committee on Intelligence can, in fact, declassify material submitted to it, and has procedures do so;
2 – the Chief Justice of the Supreme Court appoints the FISC. The President cannot judge shop for the FISC;
3 – opposing political parties of course frequently have opposing interests, particularly if the President is doing something clearly illegal;
4 – your “bare handful” of legislators usually involves 37 or so, with more being given to some material under controlled conditions;
5 – adversarial processes occur in secret all the time – they occur every time a record is sealed, a courtroom is cleared, and attorneys are forbidden to comment publicly.

And we’ve yet to even mention the legal protections afforded for actual whistleblowers who report illegal acts.

Does all of this absolutely prevent all chance of illegal programs? Of course not. Government abuses have occurred; government abuses will occur; the question is whether the procedures and oversight in place are substantial enough.

As I’ve said, there are ways of improving what’s in place already, but the histrionics associated with the recent leaks, and the procedures and oversight in place, are ill measured. They prevent reasonable discussion of possible improvements, rather than enable it.

139

Matt 06.11.13 at 12:34 am

Note that when Ron Wyden tried to warn the public as effectively as he could without violating secrecy, he said “I want to deliver a warning this afternoon: when the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.” He didn’t say that members of the government were violating the law. Who’s trying to turn this into a debate about legality rather than public oversight and rightness? If the formally required provisions of legality have been followed that’s only the lowest and least interesting bar to clear.

Formal legality (or at least “not yet deemed illegal”-ality) is especially weak since secret programs can’t be challenged in court. Local, state, and federal government have passed many laws in the open that could not survive court scrutiny. Are we to believe that secret legal interpretations, secret courts, and limited information to legislators are so much better than traditional lawmaking that open court challenge would never find overreach or other problems?

And one last thing about that legislative oversight: in public Ron Wyden asked extremely clearly if the NSA collects any type of data at all on millions or hundreds of millions of Americans, and James Clapper extremely clearly lied “no.” His excuse now is that he answered a question that he wished he had been asked instead of the one actually asked: http://nymag.com/daily/intelligencer/2013/06/clapper-wyden-least-untruthful-too-cute-half.html

We have very limited public oversight, and some of that oversight is compromised by bald-faced lies from people who know they can get away with it. Get away with it until a whistle-blower acts, anyway.

140

Jim Henley 06.11.13 at 12:46 am

1. That’s nice but not necessarily relevant. See Gang of Eight.

2. And interestingly, the current FISA court membership, as appointed by the last two Republican chief justices, comprises 10 judges appointed by Republican presidents and one appointed by a Democrat. Four of 11, which seems like a lot, were appointed to the bench by George W. Bush. Of its presiding judge, Reggie Walton, the Washington Post reported in a profile his “decisions do not appear to be guided by politics but by a tough-on-crime mentality.”

The FISC’s near-complete record of approving warrants is a matter of record. That’s a point to you, I suppose: who needs judge-shopping of the micro sort (taking this warrant to that judge) when any one of them will give you what you want 5,999 times out of 6,000? The shopping was already done ahead of time. For the intelligence community, the FISC is like a restaurant where you already know any dish is good.

Jennifer Hoelzer, formerly of Senator Wyden’s staff, offers more on the structural flaws of the FISC.

3. Or, not! There’s also the nice question of what is “illegal” and what is “clear.” See Ms. Hoelzer.

4. Again, not necessarily. It can be as few as 8. In those cases, there’s no staff support and no note-taking. They Go8 may not go to the full committee. Their entire institutional skeleton and musculature is amputated.

5. You are saying a generally open, explicitly adversarial court system with aspects that can be sealed on a case-by-case basis is as good as a secret, one-sided court system with aspects that can be unsealed maybe now and then. I am grimly amused, but also contemptuous.

141

Jim Henley 06.11.13 at 12:59 am

142

floopmeister 06.11.13 at 2:44 am

lupita @127

Exactly. I for one will be very interested to see how many votes Assange gets in his run for a federal Senate seat in Victoria:

http://www.news.com.au/national-news/wikileaks-to-run-candidates-in-3-states/story-fncynjr2-1226613926649

There’s more support for Assange in Aus than I think many Americans would realise. I’ll certainly be voting for him – if for nothing else than to stick a finger in the eye of a foreign national security apparatus that thinks I deserve less protection than many of the posters here.

143

Ronan(rf) 06.11.13 at 9:46 am

..and the Verizon case seems to be one of those examples of stretching the law that Andrew finds so unlikely

144

Barry 06.11.13 at 12:37 pm

Ronan(rf) 06.11.13 at 9:46 am

” ..and the Verizon case seems to be one of those examples of stretching the law that Andrew finds so unlikely”

Andrew F is really good at finding things unlikely, if he wants them to be so.

145

Andrew F. 06.11.13 at 2:36 pm

Jim, a few more notes:

1 – you’re referring here to notification procedures for “covert actions” under the National Security Act. So two things. First, we’re talking about notification requirements under FISA, and those requirements are clear and much broader than those for covert actions under the National Security Act. And it appears that the intelligence committees not only were briefed, but were given the ability to share, under controlled conditions, the information with other members of Congress. Second, PRISM would not qualify as a covert action, nor would intelligence collection activities generally.

2 – “judge shopping” refers to an attempt by a party in a legal action to ensure that a particular judge presides. In the case of the FISC, the judges are appointed by the Chief Justice of the Supreme Court, who as far as I am aware is not a party to any legal action over which the FISC has jurisdiction. Will the judges selected by the Chief Justice reflect his own ideological preferences (which hopefully will include a concern for rule of law)? Of course. That may be dismaying to someone who doesn’t share those preferences, but it doesn’t constitute “judge shopping.”

3 – The Hoelzer article is a bit confused on certain aspects of FISA. First, those on whom a FISA order is served can challenge it, and have done so. Second, the opinions of either the FISC or the FISC of Review are sometimes declassified and released (though usually with redactions). For an example of both, see In re: Directives

4 – I did not say that an open adversarial process is just as much a check on abuse as a closed adversarial process. Of course it’s not. But we do have closed proceedings when it is determined that the information being considered should not be made public. Other courts often consider a broad range of matters, some which will require more protection of information than others. The FISA courts, however, were instituted precisely to review cases in which most matters would require protection of information. This means that the default is towards classification, though some opinions have been released. There’s been discussion, and recently, about moving the FISC to release additional opinions. Personally I think that might be a good way to improve the process. What I took issue with was your assertion that a public adversarial proceeding is the only way to check executive power. It’s not.

Ronan, imho the Verizon matter is much more interesting, and possibly concerning, than the PRISM program, but I’ve tried to stick to PRISM given the subject of the thread.

146

Barry 06.11.13 at 3:13 pm

“I did not say that an open adversarial process is just as much a check on abuse as a closed adversarial process. Of course it’s not. “

You used it as a comparison, with no qualifiers, and no mention of the many, many differences.

147

lupita 06.11.13 at 6:10 pm

Finally! The anglophone media has started to mention the reactions of foreigners to PRISM. For example, we have now heard about the American Chamber of Commerce successfully lobbying the EU to not implement data-protection laws for its citizens and about the US State Department’s belligerence in flooring talks on the governance of communications technology at the UN World Summit.

I really hope Canada, Australia, and the EU states stop behaving like Scotland Yard under Murdoch and help liberate the world of this vampire squid arm called PRISM. Many lesser states have been courageous enough to derail WTO talks, overthrow Western puppets, break AIDS drugs patents, declare moratoriums, and nationalize industries. Is it too much to ask 1st world states to get Google to adhere to their privacy laws? Could the 1st world media declare a moratorium on publishing information unearthed by PRISM about the vices of their government officials until this tentacle is removed?

Western powers are good at producing individual unmarried men willing to sacrifice their lives for a cause: Assange, Manning, Snowden. However, collective action in the form of the power of foreign states is also necessary to confront full-spectrum dominance by the US.

148

Barry 06.11.13 at 6:18 pm

Andrew F: ” In the case of the FISC, the judges are appointed by the Chief Justice of the Supreme Court, who as far as I am aware is not a party to any legal action over which the FISC has jurisdiction. Will the judges selected by the Chief Justice reflect his own ideological preferences (which hopefully will include a concern for rule of law)? Of course. That may be dismaying to someone who doesn’t share those preferences, but it doesn’t constitute “judge shopping.””

I’m just guessing here, so bear with me, but I’ll wager that FISC judges must have high-level security clearances, which gives the intelligence community a lot of control over who gets on that particular bench.

149

Barry 06.11.13 at 6:22 pm

BTW, the publicly tossed about figure is something like well over a 99% approval rate by that court. Either it’s rigged, or – well, it’s rigged.

150

lupita 06.11.13 at 7:55 pm

John Gilmore writes:

From: John Gilmore
Subject: Re: [IP] Re corporate governance and surveillance
Date: June 9, 2013 4:31:05 AM EDT

We know what happened in the case of QWest before 9/11. They
contacted the CEO/Chairman asking to wiretap all the customers. After
he consulted with Legal, he refused. As a result, NSA canceled a
bunch of unrelated billion dollar contracts that QWest was the top
bidder for. And then the DoJ targeted him and prosecuted him and put
him in prison for insider trading — on the theory that he knew of
anticipated income from secret programs that QWest was planning for
the government, while the public didn’t because it was classified and
he couldn’t legally tell them, and then he bought or sold QWest stock
knowing those things.

This CEO’s name is Joseph P. Nacchio and TODAY he’s still serving a
trumped-up 6-year federal prison sentence today for quietly refusing
an NSA demand to massively wiretap his customers.

This has ugly parallels with the Aaron Swartz case and with the
federal persecution of hundreds of state-legal medical marijuana
providers. In this case a corrupt federal prosecutor (is there any
other kind?) did the dirty work of the NSA by performing an “ordinary,
everyday” legal rape of an innocent person: find any of the half a
dozen federal felonies that every person commits every day, and
prosecute them for it. Not because their “crime” was terrible or
heinous. But because they didn’t kowtow to some smiling bastard in an
out-of-control agency.

151

Trader Joe 06.11.13 at 9:38 pm

@150
Don’t prepare Mr. Nacchio for martyrdom and sainthood too quickly. Its true that Nacchio made the aforementioned claims and they may or may not be true…Nacchio’s insider trading charges date to more than 2 years before 9/11. He was run up on 42 separate charges and convicted of 19 most of which pre-dated the run in with the NSA and some of which he essentially admitted to.

QWest and Nacchio (+ his insiders) made billions selling stuff to the government before they turned on each other. This is better thought of as a mafia-don taking out one of his capos, even if it was a frame job.

Not a defense of the NSA by any means – but Nacchio was no “innocent” billionaire who crossed the g-man.

152

Barry 06.11.13 at 10:05 pm

There are innocent billionaires?

153

Barry 06.12.13 at 10:37 am

“…Nacchio’s insider trading charges date to more than 2 years before 9/11. He was run up on 42 separate charges and convicted of 19 most of which pre-dated the run in with the NSA and some of which he essentially admitted to.”

Um, that doesn’t disprove the original comment, which asserted that he was prosecuted for things which the DoJ generally doesn’t look into that much. As for his confession, if he had a choice between rolling the dice on a trial and risking 30 years in prison, or taking a plea bargain for several years in prison……………

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Barry 06.12.13 at 10:56 am

BTW, for all of the people here who don’t find a problem with government programs:

http://www.mcclatchydc.com/2013/06/10/193546/new-layer-of-secrecy-emerges-at.html#.UbhTbJy0JDd

‘ GUANTANAMO BAY NAVY BASE, Cuba — When the war court reconvenes this week, pretrial hearings in the case of an alleged al-Qaida bomber will be tackling a government motion that’s so secret the public can’t know its name.

It’s listed as the 92nd court filing in the death-penalty case against a Saudi man, Abd al-Rahim al-Nashiri, who was waterboarded by CIA agents.

And in place of its name, the Pentagon has stamped “classified” in red.

It’s not the first classified motion in the case against the 48-year-old former millionaire from Mecca accused of orchestrating al-Qaida’s October 2000 suicide bombing of the USS Cole warship off Yemen. Seventeen sailors were killed in the attack, and the prosecutor proposes to execute al-Nashiri, if he’s convicted.

Also on the docket for discussion this week is a classified defense motion that asks the Army judge to order the government to reveal information “related to the arrest, detention and interrogation” of al-Nashiri. By the time he got to Guantanamo in 2006, according to declassified investigations, CIA agents had held him at secret overseas prisons for four years during which, according to declassified accounts, he was waterboarded and interrogated at the point of a revving power drill and racked pistol.

But what makes the no-name government motion so intriguing is that those who’ve read it can’t say what it’s about, and those who haven’t don’t have a clue. Not even the accused, who, unless the judge rules for the defense, is not allowed to get an unclassified explanation of it – and cannot sit in on the court session when it’s argued in secret.’

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hix 06.12.13 at 2:46 pm

Canada Australia, NZ and UK run the global data surveilane together with the US. They sure are not going to stand up against something they are part of.

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lupita 06.12.13 at 7:31 pm

Canada Australia, NZ and UK run the global data surveillance together with the US. They sure are not going to stand up against something they are part of.

Great, that makes Americans foreigners too.

In other news, today’s PRISM Google doodle is very cute.

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Andrew F. 06.12.13 at 11:55 pm

Not sure what Nacchio has to do with this, but on the subject of federal prosecution Snowden seems to be doing everything he can to make a government case against him easy: South China Morning Post

Disclosing aspects of intelligence gathering against China is well beyond the bourne of any reasonable definition of whistle-blowing (he had already broken through the legal definition).

Given earlier reporting by The Washington Post that Snowden had insisted on a promise that they publish the entire presentation relating to PRISM, and insert a message coded in a key that he could use to prove his authenticity to a foreign embassy, in exchange for exclusivity (which the WP turned down), it seems likely that this latest disclosure is intended to do one or both of two things: (1) persuade the PRC to help him stay in Hong Kong, although the PRC would want something in return; (2) stoke popular support in Hong Kong for his fight against extradition.

My two thoughts are (1) if what he took is sufficiently revealing, the PRC may be interested in doing a deal, and (2) if he does a deal, he’ll strengthen a massively authoritarian government and weaken the community of liberal democracies.

I’m beginning to wonder whether his motivation is truly a libertarian ideology, or simply well rationalized ego (the latter would fit some of his more grandiose claims). And it would be easy enough for him to rationalize the disclosure of intelligence operations against Hong Kong, his intended new home. Unfortunately, that is also what would strengthen a treason case against him.

That said, he may be playing a clever PR game while being careful not to reveal anything purely harmful to the US – but given his disclosure of 41 slides to The Washington Post and The Guardian, and their decision to publish only 4 because the rest would be harmful, I have to say that I have some concern about his judgment. If he truly wants to take a stand on the issues he raised, he should return to the U.S. of his own accord, and fight at trial and for public opinion.

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bianca steele 06.13.13 at 1:52 am

Aw, Andrew, don’t you think by doing a deal with the PRC he could end up strengthening democratic freedom currents there–even if he’s a libertarian? Okay, not, and I haven’t read enough to know whether he’d think so, but I don’t think it’s impossible he might think so. (You’d think cash would be more effective and safer than your speculation.)

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