Jan 19 2014

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Obama’s Inadequate NSA Response

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First the British, Now, the NSA...

First the British, Now, the NSA…

All you needed to know about President Obama’s thinking and philosophical framework regarding current NSA surveillance was perhaps unintentionally telegraphed in the first sentence of his much anticipated speech on spying:

At the dawn of our Republic, a small, secret surveillance committee borne out of “The Sons of Liberty” was established in Boston. And the group’s members included Paul Revere. At night, they would patrol the streets, reporting back any signs that the British were preparing raids against American’s early Patriots.”

Stirring and accurate history that made America possible, but not the right example for the quandary America faces today.

Consider that in all their dedicated efforts to keep an eye on the British, the Sons of Liberty didn’t read the mail, monitor personal visits or eavesdrop on conversations between Boston’s residents and the British  presence in the city, let alone map out the friends and acquaintances of all those Bostonians who might have had contact with the British.

We didn’t win the Revolutionary War by spying on Americans.  We’re not going to win the War on Terror that way either.

This is the distinction that the President and others seem to miss.

Code breaking and spying on potential enemies are integral to our history and are rightly celebrated.  Improvements to intelligence gathering – particularly signals intelligence gathering –  have been vital to our national security since 9-11 exposed glaring weaknesses to a new type of threat by non-state actors.

But more than 12 years after 9-11, utilizing previously unheard of computing power, storage and data analytics – in conjunction with what can charitably be called permissive interpretations of the law – the NSA has morphed from an intelligence agency tracking down America’s enemies, to an all-purpose Big Brother, capable of collecting, storing and analyzing the electronic footprint of anyone – and any American – at a mouse click; ostensibly to better track down America’s enemies.

The potential for abuse is simply staggering.

The NSA would probably consider that uncharitable. Rules, regulations, procedures and protocols have been tested and put in place to prevent unauthorized use against Americans we are told again and again. Then there is the suspiciously repeated stand-by from public officials in defense of the NSA; that the programs were authorized by Congress, implemented by two Administrations (of different political parties) subject to judicial review (albeit secret and unaccountable) with active and robust oversight by the Committees of jurisdiction.

See? No problems here.  Just keep walking along folks.

It’s just too cute by half.

Sure, the legislation is public, but that’s about it. After that, there is an impenetrable wall around the process where the perceived national security imperative trumps everything else.

So when it becomes cumbersome to ask for individual warrants to collect phone data under Section 215 of the Patriot Act, just radically expand the interpretation of the clause so that judicial authorization is required once a calendar quarter to collect all phone records.  Easy-peasy.  So what if the public doesn’t know. It’s all for them anyway, right? And so long as you are not doing anything wrong, why should anyone care?  And when someone does challenge the collection methods, or review process, or seeks additional transparency, squash it by citing unspecified national security concerns.  Paint the inciters as unilateral disarmer’s bent on bring on a new 9-11.

Indeed, the whole apparatus has degenerated into an exercise in circular reasoning. To protect your civil liberties we need to operate programs that can violate your civil liberties, but we must do that without you knowing if your civil liberties have been violated – you know, to protect them.

All for the greater good.

Really, what are average Americans to discern otherwise?  But for traitor/hero Edward Snowden, we wouldn’t even be having this conversation.  Indeed, would the President be calling for reforms to NSA policy and practices if not for Snowden’s revelations and the public outrage that resulted?

The President’s message in his speech was simple and sadly, insufficient: trust us. Of all the things we can do, that we cannot do blindly – not after what we have found out.

The NSA’s technological behemoth, with its tentacles stretching across the world into every PC, phone, website and data base is ultimately controlled by humans; fallible, emotional and flawed. Therefore, promises that the system can never be used against Americans simply do not stand up to scrutiny.

Revelations concerning the NSA programs in the last six months, include the fact that the NSA violated US law 2,700 times between March ’11 and March ’12; that the NSA had “scooped up” 56,000 emails a year for three years from Americans with no ties to terrorism; exploited a legal loophole to collect data on Americans without a warrant; and that NSA employees improperly tracked previous love interests through the program, in contravention of all policy and regulations.

When you consider these breaches within the context of the IRS scandal, where government operatives effectively suppressed the First Amendment rights of Tea Party groups from 2010-12 – without a computer system even remotely as capable as the NSA – you see the potential for abuse to American civil rights.

It confers no credit upon the NSA writ large that intelligence gathering to protect the nation expanded to include eavesdropping on the personal calls of trusted allies, bugging trade conferences for potential competitive advantage, or in planting “back doors’ to commercial technology products – far less likely to be used by terrorists or enemies than by law-abiding citizens.

It is the surveillance technology version of “Girls Gone Wild.”

With the best of intentions,  we have created technology so enormously capable that effective man-made limits on its use, contrary to the purposes of its design, are debatable at best –  with profound civil liberties implications. The problem only grows larger as the system of surveillance grows more powerful and sophisticated.

With all of this as context, the President’s speech looks much more like style over substance.

His announced remedies are inadequate by virtue of their generality, forced by the requirement for secrecy. POTUS spent most of his speech talking about “metadata” but that is only one part of the problem with NSA. And in appointing a deeply partisan political official – John Podesta – to head up the White House’s initiative on data and privacy, the President signaled, in a way that few other actions could, that he is personally committed to keeping the NSA programs pretty much where they are.

As Americans, we deserve better.

We might start with a simple cost-benefit analysis. What has the NSA program done?  It didn’t stop the Underwear Bomber, the Times Square Bomber or Boston Bombers – terror suspects all.  Or the Foot Hood shooter for that matter, who was communicating with the #1 terrorist, heading up Al Qaeda on the Arabian Peninsula, before he carried out his jihad. You might think that had found its way into the NSA intercepts. If we know so well what it didn’t do, can anyone say what it did do? If Americans are going to be asked to sacrifice liberty, they should at least know why – clearly and indisputably.

Second, the NSA philosophy seems to be that the ends justify the means.  Collect everything – store everything – because maybe it might be useful later. Design bigger storage, create more effective tools, enable faster integrated analysis – infiltrate technology designs, break all cyphers, bug economic conferences and private foreign companies – know everything.

Because if we know everything, we can be safe.

But that’s not true.

We need to know a fraction of what the NSA has collected. However, our physical safety as a nation utterly depends on us getting that fraction of  information early, accurately and completely. Let’s design our surveillance capability around that organizing principle, and not allow technological innovation alone – the ability to find more, store more, penetrate further – to dictate what, how and why we collect information.

There is a clear civil liberties common ground in that approach.

For now, it comes down to this.

The research and preparation of this post took two hours. In that time, I checked out the Al Jazeera site, lots of articles on Edward Snowden and his revelations. I looked up the Patriot Act and the FISA Amendment Act and other laws impacting NSA, as well as some cursor searches on Al Qaeda, and Al Qaeda related plots.

In all likelihood, based on what has been disclosed about NSA in the last six months, my searches and this post have been picked up and stored somewhere in the NSA labyrinth.

Is that ok?

Your answer means a lot to the future of American civil liberties as we currently understand them.















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