After the NSA Leak: A “National Conversation” Without Information

After the NSA Leak: A “National Conversation” Without Information

Cory Grunkemeyer, 2005, Flickr creative commons

No serious privacy-watcher was surprised, I suspect, at Edward Snowden’s National Security Agency revelations. Major New York Times stories at the end of 2005 had already implied that Washington was monitoring virtually all Americans’ telecommunications traffic—both phone calls and e-mails. With the notable exception of Qwest, America’s heavily regulated telecom companies never showed much inclination to quibble with government requests for access. Congress showed where it stood on the matter when it passed legislation in 2008 protecting the companies from civil suits and criminal prosecution stemming from their complaisance.

Like the proverbial kid in a candy shop, authorities confronting the resulting oceans of personal data could hardly delve into everything at once. The only possible approach must have been to do what we now know they are doing: analyzing the deep structures of aggregated connection data—patterns of who contacts whom, where, how long, how often, etc. Some intelligence experts consider such connection data more revealing than the contents of e-mails and phone conversations. After modeling communications profiles of those already designated—rightly or wrongly—as bad actors, NSA analysts could then presumably trawl all Americans’ communication logs to identify those with similar profiles.

The data-rich world that we now inhabit invites embellishing such profiles with commercially assembled data. Entire industries have burgeoned in recent decades—in advertising, marketing, insurance, consumer credit, finance, health care, and other domains—devoted to creating, compiling, storing, and retailing data on ordinary Americans. Linked to telecommunications connection patterns, information from these databases can sharpen the ability to pinpoint distinctive patterns in people’s lives. As a result, we can assume, it could become dangerous to share, say, reading habits, credit card uses, or toothpaste choices attributed to suspected terrorists.

The trick, in all such operations, is to narrow the field from unmanageable seas of data to subsets of cases small enough to afford detailed investigation. Once that’s accomplished, the authorities can always seek warrants from the secret FISA court (named for the Foreign Intelligence Surveillance Act of 1978 that created it), which specializes in rarely declining such access. Better still, the Patriot Act affords the possibility of seeking information on anyone, coupled with a gag order to prevent those who furnish the data from disclosing this fact. As with FISA court orders, the targeted individual is not notified after the investigation, even when no wrongdoing is found.

To understand how badly these sweeping prerogatives can go wrong, consider the well-documented case of Portland lawyer and convert to Islam Brandon Mayfield, recently recounted by New York Times columnist Gail Collins. In 2004, Mayfield and his family noticed unexplained intrusions and searches of their home, concentrating on their computers. It turned out that FBI databases had identified him as a participant in terrorist activity abroad. He was arrested and held for two weeks before the FBI acknowledged it was all a mistake. The federal judge handling the case found the Patriot Act’s authorization of secret searches like those Mayfield had been subjected to unconstitutional—a ruling reversed by a higher court.

In a recent op-ed, I decried the current lurch to surveillance of all Americans’ communications, all the time—even more for what it portends than for what it already does. When universal government monitoring of once-private communications is redefined as “the new normal,” pressure will build to apply the capabilities now flying under the flag of counterterrorism to new forms of wrongdoing—failure to report taxable income, for example, or child abuse, or dangerous driving. In putting forward this idea, I feared undermining my own case as unfounded speculation. But the same day my piece appeared, the Wall Street Journal ran an essay by Holman Jenkins, Jr., a member of its editorial board, urging steps in this very direction. “A basic problem is that terrorism is rare,” Jenkins observed; “Crime isn’t.” “Maybe the best outcome…would be to take metadata surveillance away from the spooks and apply it more broadly and openly to regular law enforcement.”

I don’t know what disturbs me more—the tectonic shift toward increasingly comprehensive state surveillance or the official response to its public exposure. Any terrorist organization or foreign intelligence establishment must long have been aware that practices like those now revealed were at least highly likely in the United States. They come as a surprise only to the broad American public. We live in a country so big, and so profligate, that it supports a semi-secret agency like the NSA with an estimated annual budget in excess of $10 billion. That figure exceeds the gross national product of more than one hundred countries. Yet the agency (just one among many secretive institutions comprising the military-intelligence complex) is so well insulated from public scrutiny that it shows every sign of stonewalling through the current controversies.

This country’s political elites, across the three branches of government, have coalesced to defuse and obfuscate the revelations—desperately fashioning one disintegrating fig leaf after another to conceal a reality that is increasingly apparent. In one of the least inspiring statements of his presidency, Obama characterized the newly-disclosed NSA activities as “modest encroachments on privacy,” insisting that “nobody is listening to your telephone calls.” He went on to characterize the revelations as an opportunity for a “national conversation” on privacy and security. This from a president whose administration has done everything in its power suppress the information that might fuel such a conversation.

The quality of the deception and double-talk deteriorate as you go down the food chain of officialdom. Last March, Director of National Intelligence James R. Clapper, Jr. testified to the Senate Intelligence that the NSA did not collect records on “hundreds of millions of Americans.” Since the June revelations, he has insisted that that testimony was the “least untruthful” that he could provide “about a classified program.” A postmodernist at heart, that man. When truthfulness and protection of classified programs are juxtaposed, you know which will prevail.

Meanwhile the upper crust of the legislative branch keep tripping over their lines, in efforts to defend the unraveling deception of those who’ve elected them. “There is no content involved” in the NSA surveillance, insisted at first Senator Dianne Feinstein, Chair of the Senate Intelligence committee, “no content of a communication.” A few days later she acknowledged that NSA analysts can indeed access the “content of a call.” But the surveillance represents an effective and necessary tool against terrorists, she gamely maintains. Trouble is, the evidence for this can’t be presented because of—you guessed it—national security. “The instances where this has produced good—has disrupted plots, prevented terrorist attacks…is [sic] all classified,” avers Representative Mike Rogers of Michigan, chair of the House Intelligence Committee. And anyway, the activities were legitimate, the congressional leadership insists, because all elected representatives were “briefed.” “‘Fully briefed,’” retorted Senator Barbara Mikulski, “doesn’t mean we know what’s going on.”

As always when those at the top find themselves caught in blatant contradiction between official public values and their own designs, the English language is the first casualty. After the scandal broke, NSA Director Keith Alexander went before the Senate to insist, “We have great people working under extremely difficult conditions…to protect our civil liberties and privacy.” Such flat-earth declarations make more sense, when you realize that they come from the same world that has abolished “torture” in favor of “enhanced interrogation techniques.”

These vaulting peaks of hypocrisy are simply the visible tips of troubling deep structures in U.S. governance. Vast realms of state institutions and activity have been cordoned off from legal inquiry, and hence public scrutiny, by being bracketed as vital to national security. Court challenges to government surveillance of telecommunications data arising in the wake of the 2005 disclosures have met with a peremptory, and thus-far effective, defense from government lawyers: evidence required to try the cases would purportedly breach national security. This has effectively stalled legal challenges in their tracks.

Now, privacy isn’t everything. Every privacy-watcher I know can readily identify settings where privacy claims have to yield to others’ needs to know. Where there is specific evidence of someone’s highly communicable disease, imminent murderous intent, or life-threatening negligence, mechanisms are required to override the sanctity of the home, or the privacy of communications. But these crucial overrides have to be justified in terms of specific dangers attributable to specific people in specific situations. What we are seeing now, by contrast, is a drift into a world where diffuse and collective dangers are taken as pretexts for tracking everyone, all the time.

So indeed, a national conversation is needed on how personal data should, and should not serve, in combating foreign dangers. We need to ask what we’re prepared to do, and where we’re prepared to draw the line. Unfortunately, as the events of the last two weeks have shown, the information to support this kind of conversation is exactly what this country’s political class is determined to conceal. Without it, the “conversation” won’t be anything more than a monologue.

James B. Rule is a sociologist at U.C. Berkeley’s Center for the Study of Law and Society. He has been contributing to Dissent for thirty years. His most recent book is Privacy in Peril: How We Are Sacrificing a Fundamental Right in Exchange for Security and Convenience (Oxford University Press).

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