A number of articles this week have gotten me thinking more about the NSA. I decided to write up my thoughts over lunch. There have been all the reports of Gen. Alexander’s speech at Blackhat, and the audience reaction thereto. Then there was this report of a woman who searched on pressure cookers, while her husband searched on backpacks, and they then got a bunch of government visitors. All of this has the various folks who were already suspicious of “the government” even more up in arms.
Now, I’m not denying there are problems. There is clearly a different between what is legal and what is right, and there are moves afoot to correct the imbalance that has existed since the overreaction to 9/11. That said, there is also clearly a misunderstanding of the NSA and the basic reason this is legal at all.
Let’s start by looking at the differences between agencies. The FBI is focused on law enforcement within the US. The CIA gathers intelligence on foreign soil. The NSA, which is an arm of the Department of Defense, was originally created to focus on signals intelligence for the DOD. It has later branched into electronic intelligence and security, including computer security. The NSA, just like the DOD, is limited by law regarding what actions it can take towards US citizens. Just like the DOD cannot conduct military actions within the US, the NSA cannot monitor the signals between two US citizens.
Next, let’s look at the Constitution. To whom does it apply? The answer is US citizens. Non-citizen — that is, foreign nationals — do not have constitutional protections. Unless other laws have extended protections, they are not protected from search and seizure. If you think about it, the reason is clear — you are dealing with someone who has allegiance to a different country, and so the presumption is that they will work in the interest of that country over that of the US. A lot of people seem to think there should be protections for everyone, but that is not how the law is written. As any game player knows, if something isn’t prohibited in the rules, someone will figure out a way to abuse it.
Put these two factors together, and you have the area in which NSA was working: doing legal investigations in support of monitoring of foreign nationals, and communications to foreign countries. We can — and should — debate how much protection a foreign national in the US should have, or how much a US citizen’s interaction with a foreign national should be protected. Attitudes regarding that question change over time, and technology has pushed the issue even more. But this is also something that most people in the US do not understand. Look closely at what Gen. Alexander said. He kept emphasizing that there was foreign involvement in all the monitoring NSA did. That’s the “F” in the FISA court – Foreign Intelligence.
This bothers some people, including groups such as the ACLU. An article in Boing Boing highlights this way of thinking when it quotes the ACLU’s thoughts on how NSA views “targeted”:
Americans need not worry about the program, the government says, because the NSA’s surveillance activities are “targeted” not at Americans but at foreigners outside the United States. No one should be reassured by this. The government’s foreign targets aren’t necessarily criminals or terrorists—they may be journalists, lawyers, academics, or human rights advocates. And even if one is indifferent to the NSA’s invasion of foreigners’ privacy, the surveillance of those foreigners involves the acquisition of Americans’ communications with those foreigners.
First, note that this makes clear the NSA is not looking at American citizen to American citizen communications — as I noted above, this is outside of their scope. Further, no one seems to have a problem with NSA (or the CIA) monitoring Foreign to Foreign communications. The concern is when there is one side foreign, and one side American citizen. Whose rights are paramount: the American side, or the Foreign side? Right now, it appears the emphasis is on protection. That’s legal under the current laws, as one side is foreign. Is it right? That’s for the people to decide, and express to their congresscritters.
It is these restrictions that makes the case of the family, the pressure cookers, and the backpacks even odder. Presumably, they are all US citizens. So if they were being monitored by an NSA program, why was it done? NSA is very careful about that. The answer is likely much less sinister. It appears it was some local terrorism task force (which tends to overreact). As for the monitoring, the NSA was not involved at all. It turns out that Michele Catalano’s husband’s boss tipped off the police after finding ‘suspicious’ searches (including ‘pressure cooker bombs’) in his old work computer’s search history. It is perfectly legal for an employer to review the usage of a work computer. Yet when this was first reported, what did everyone assume? Yeh. Right. The big bad government.
My point is this: take a deep breath. There is loads of paranoia about the government. Some of it is justified, but much of it isn’t. The government is not filled with men in black suits and Ray-bans out to get you. It is filled with people trying to do their best to protect America, keep it safe, and allow it to succeed. The key word is “people”, and people are (surprise) human. They screw up, and create imperfect laws and structures. Other people come around and then figure out how to exploit the imperfection for some purpose. It is our job not to reject something because it isn’t perfect the first time; it is our job to make steady progress towards perfection. If you don’t like how NSA is operating under the laws, then don’t run around with your head wrapped in tin foil — write your congresscritters — or better yet, run for congress yourself — and change the laws.
We’re also dealing with a congress that, in general, does not understand technology. Consider the constitutional rules on search and seizure. They were written in an environment where one had to go into someone’s house to search. That’s why warrants are required to search in a house. Wiretaps had a similar notion — the wires were in the house. When we’re dealing with cell phones, meta data, and search info, how does that apply? You give the search terms to an external computer. You willingly given the metadata to a centralized system to make a call. Is this personal data where you are going into a residence to seize it? See the problem. Our laws have not caught up to our technology, and you have people that do not understand the technology writing and applying the laws. Don’t believe me? Look at the recent rulings on the resale of digital recordings. It was ruled that you had to sell the media player with the digital media, because the law was based on physical manifestations of recordings. This article about recent attempts by the FBI (not the NSA) to monitor Internet metadata makes the same point: the laws currently do not treat metadata the same as the contents. Metadata is treated analogous to address information on an envelope — something freely visible and out in the open. By the way, note that using encrypted protocols does not solve this problem — addresses must remain unencrypted to permit messages to be routed.
Further, while you’re addressing the laws, remember to look at the entire picture. It is pointless to update surveillance and privacy laws and forget things like the Citizens United decision. As has been noted by folks like Bruce Schneier, the ability with which corporations with deep pockets can finance campaigns and causes makes it so that laws are written that serve the for-profit corporations instead of the individual citizen. It does no good to restrict what data the government can collect when corporations are free to collect even more data simply because of a one-time business relationship.
Dan, you are making things too complex.
This is the text of the 4th Ammendment to the constitution
“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.”
I, and many like me, maintain that “houses, papers, and effects” includes commercial transactions. Unless these transactions are criminal “upon probable cause, …describing the place to be searched and the persons or things to be seized” they are illegal.
That is what the NSA is doing.
I am and was a supporter of the Patriot Act. But it needs to be implemented from narrow to broad, from threat to search. If there is a threat, get the information you need from the commercial sources and otherwise to follow it up. Do not collect all the information in the world, and then filter it for each threat you encounter. The second method is clearly against the 4th amendment!
We need the government to protect us, not to control us. When the NSA knows every movement we make day or night (GPS on our cell phones provide that information every 15 minutes or more frequently and that is part of the “metadata” the NSA collects) Then they know when I speed, when I go to the bathroom, and when I cheat on my wife! They also know who I meet at Starbucks, and who I sit with in church.
It is not complex to conceive of a government using this as a tool against its “enemies” domestic, and citizens of the state.
Leon
I think you misunderstood what I was saying.
I, and many like me, maintain that “houses, papers, and effects” includes commercial transactions. Unless these transactions are criminal “upon probable cause, …describing the place to be searched and the persons or things to be seized” they are illegal.
I’m not disagreeing with you that commercial transactions of citizens should be protected. What I was saying was that it was a matter of interpretation. The 4th amendment isn’t clear. Right now, the language has been interpreted differently. If you want that phrase interpreted as you want, then you need to get the interpretations in the laws changed. Until then, under the interpretations currently in use, it is legal. That doesn’t make it right, which if you noticed I said was something else entirely.
I am and was a supporter of the Patriot Act. But it needs to be implemented from narrow to broad, from threat to search. If there is a threat, get the information you need from the commercial sources and otherwise to follow it up. Do not collect all the information in the world, and then filter it for each threat you encounter. The second method is clearly against the 4th amendment!
There’s that “clearly” again. When you are having to interpret language, nothing is clear. Further, NSA is not collecting “all the data in the world”. They are not collecting all your credit card transactions, they are not reading the GPS receiver in your car… or on your phone. They were being given data on calls made — endpoints and durations. What would go into a billing transaction on your phone bill. Furthermore, NSA is not collecting information (unless the phone companies are giving it to them without adequate filtering) on solely American citizens. NSA, as a DOD agency, is prohibited by law on monitoring domestic traffic (DOD cannot conduct domestic operations).
Getting back to “clearly” — the problem is that the law interprets things in a different way. I’ve said it before, I’ll say it again. under the interpretations currently in use, it is legal. That doesn’t make it right, which if you noticed I said was something else entirely. To make it illegal, get Congress to change the interpretations in the law. However, we’re dealing with a Congress that does not understand technology, which is why they have so much trouble making laws dealing with technology.
We need the government to protect us, not to control us. When the NSA knows every movement we make day or night (GPS on our cell phones provide that information every 15 minutes or more frequently and that is part of the “metadata” the NSA collects) Then they know when I speed, when I go to the bathroom, and when I cheat on my wife! They also know who I meet at Starbucks, and who I sit with in church.
No, they don’t. Well, at least NSA doesn’t. Can’t speak to the FBI or other agencies. GPS data, if it is given as part of a call, is not given to NSA as “metadata”. If you are not using the phone, NSA has no idea when you speed, go to the bathroom, or cheat, or who is in your proximity at Starbucks, or who you are near at church. Unless you are calling them, and (supposedly) if they are a non-national. Now, if you have a smartphone, Google or Apple may know this information. But (and this is the point I’ve been trying to make), for some reason we think Google and Apple are good and friends and rainbows and unicorns, and the Government is big and bad and evil and dark and sinister. The truth is neither. Google and Apple… and Mastercard and Visa… are not good and are not watching out for you … they will do whatever they can to make a buck for their shareholders and officers. The government — and you should know this from working with them over the years — is too big and bureaucratic and stovepiped to be evil. They are inept and stupid and inefficient. That’s something different.
It is not complex to conceive of a government using this as a tool against its “enemies” domestic, and citizens of the state.
No, it is not complex to conceive of that. However, there is no evidence that this is being done by the US government. In fact, there is a lot of evidence that the government doesn’t even know how to put 2 and 2 together to make 4. It may be given the metadata on interactions with foreign nationals, but there’s little evidence that it proactively uses it in any way, that it knows how to search it, that it knows how to do the data mining to find the correlations (hell, you’ve worked with the IC — you know they have loads of difficultly even finding their ass in a room of holes, and when they do, figuring out what the asshole is doing).
Could it be done? Yes. Is it done? Probably not. Is it legal? For the NSA, not if both sides are domestic; beyond that, it depends on interpretation. This is what I’m talking about when I say there is paranoia. There is absolutely no evidence that the US government is currently a surveillance state, and is using that information. There is evidence that other countries are at that level (Great Britain — I’m looking at you). There is evidence that some corporations are at that level when they monitor employees. But as for the US government — at this point — it is fear uncertainty and distrust.
Again, that doesn’t mean we shouldn’t change the interpretations in the law so it cannot happen. But it is not being done now — it is only at the “potential” stage.
Well, your discussion is incomplete in at least one sense. As you said, US law applies to US citizens and not to foreign nationals. However, the same can be said of a country such as the UK — UK protections do not apply to non-UK subjects. Therefore, monitoring of Americans by an agency such as the GCHQ can be considered perfectly legal, just as monitoring of people from, say, the UK by the NSA is perfectly legal. Problem: These two agencies have a “special relationship” and routinely share information. GCHQ has been known to keep tabs on US citizens who might be of interest to US law enforcement, thus skirting the US Constitution. It works the other way around as well. And it doesn’t just apply to surveillance; recall that in the overreaction to 9/11, there were “terrorist suspects” who were transferred to US facilities in third countries such as Poland where interrogators could be more, shall we say, forceful.
I’m not disagreeing with anything you’ve said here (nor am I particularly agreeing with any of it either). But I just wanted to point out that, as much as you’ve gone to great lengths to emphasize how complex these issues are, they are even more complex than that, in a multitude of ways.
As far as intelligence sharing between countries goes, at some point you have to wonder what the concept of a nation-state even means in an era of instantaneous global communications and where you can even physically travel or physically send a package to nearly any other location on Earth within 24 hours or less.
On one point, I firmly agree with you: our laws have not caught up with our technology. The problem is that for a variety of reasons, some good and some not so good, the public has not had this conversation. And in a democracy, that’s problematic. It is for this reason that I am such a strong supporter of what Edward Snowden and Bradley Manning have done — not necessarily because I’m passing judgment on the merits of what the government is up to (though I obviously have my own feelings there as well), but simply because it has served to get these issues in front of the public.
I’d tend to agree with you, except for the last paragraph. I’ll be posting an article later today that argues that a senator should have disclosed the information, not Snowden. They could have done it without violating classified information laws, and they have a duty to be working in the interest of the people.
Basically, I agree with should be having this dialogue. I don’t like how the dialogue got started.
You’re assuming that there’s a senator who had all the knowledge needed to make such a disclosure. From what I understand, it’s not clear that this is the case.
I’m not particularly thrilled with how the disclosures had to happen either. For one thing, someone like Mr. Snowden would not have the requisite knowledge to make correct decisions about balancing what the public needs to know with what truly must remain secret for legitimate security reasons. For another, this young man’s life has been ruined.
But the unfortunate circumstances that led to Mr. Snowden being the one to make the revelations are not Mr. Snowden’s fault. Indeed, if our government would truly work in the best interests of the people, his actions would not have been necessary in the first place.
I do not agree 100% with your thesis that bad behavior on the part of the government can be chalked up to bureaucracy and incompetence rather than evil. While this may be true some of the time, or even most of the time, there are multiple examples of the government deliberately lying to the public or working contrary to the best interests of the people. And I’m not sure that it’s possible to reduce those instances to zero, no matter what you do. So in all likelihood, there will always be a need for whistleblowers. Unfortunately, the Obama Administration’s handling of such cases may set a very bad precedent for whether whistleblowing will even be possible in the future.