Item #2 on the NSA’s Official Talking Points to Justify Mass Surveillance (see p. 3) is “The NSA And Its Partners Must Make Sure We Connect The Dots So That The Nation Is Never Attacked Again Like On 9/11.” The government is fighting furiously against any attempt to restrict, say, its collection of metadata on all US telephone calls, because they argue that only collecting everything enables them to detect patterns and conduct analyses that would otherwise be impossible.
But what happens if instead of the government, the public starts using the same tools on the government? What happens when the burning eye of the surveillance state is turned back on itself?
Mother Jones reports that that’s what MIT PhD candidate Ryan Shapiro is doing. He has long been active in the field of animal rights, and became interested in the FBI’s characterization of “the eco-terrorism animal rights movement” as “the number one domestic terrorism threat” that we face. He has figured out a way of getting responses to FOIA that is so effective that the FBI is going to court to stop him.
This Saturday, DC saw something it had never seen before.
A city that treats the superficial hatreds of party politics as its lifeblood, saw thousands of people from across the political spectrum gather to denounce NSA mass spying. We heard, and roared approval for, the words of feminist Naomi Wolf, Dennis Kucinich (Democrat), Justin Amash (Republican), and Gary Johnson (Libertarian). Kymone Freeman spoke movingly about the impact of surveillance on minority communities and the civil rights movement. Whistleblowers Thomas Drake and Russell Tice were there, and Edward Snowden sent a message to be read by leading whistleblower-protecting attorney Jesselynn Radack. Tea Party people up from Richmond, VA, proudly put on Code Pink stickers labeled “Make Out Not War”. The press reported wonderingly that it was not put together “by any of the “usual” well-connected DC organizers.” I should know: I’m proud to say that, in a small way, I was one of them, and this was the first time most of us had done anything like this.
That wasn’t all. Here in Boston, activist Joan Livingston put together a solidarity rally at Park Street Station:
As if yesterday’s explosive revelations about NSA’s ongoing interception of all of Americans’ phone calls weren’t enough, yesterday evening another top secret document was released (see here for screenshots), documenting for the first time that NSA had persuaded every major tech company with the exception (so far) of Twitter to allow them real-time access to their central data servers, and therefore to the private content of communications of the vast majority of Americans. It started in 2007 with Microsoft (surprise, surprise), and most recently enlisted Apple in 2012.
(Oh, it includes AOL too? Well, that’s thoughtful. Maybe they wanted to address the criticism that they weren’t focusing enough on the threat from the remote backwoods?)
So let’s take you through the PRISM scandal, and why it means that you should really shift your communications and company documents to being hosted outside of the US.
Glenn Greenwald in the British newspaper The Guardian has published a leaked Top Secret orderdating from the day of the Boston Marathon bombings providing evidence of intrusive cellphone surveillance dating from at least 2007. In the order, the NSA directs Verizon to send to it daily the metadata on ALL CELLPHONE CALLS – the calling number, the receiving number, and the location and duration of each call.
Gone now are the pathetic pretences that the NSA “doesn’t target Americans”, or that warrantless wiretapping is just about foreign terrorists. Nobody can claim ignorance any longer. The NSA is spying on all of us, and has careened far out of the control of the Constitution.
The text of the Fourth Amendment reads:
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.
Why was this important to the Founders? Because royal administrations in the early and mid-18th century would take out “writs of assistance” to suppress dissent. Writs of assistance imposed no limitations on law enforcement, and could cover a whole town. Colonial agents could ransack everyone’s houses, looking for evidence of any lawbreaking. Writs of assistance also effectively suppressed the political activity of people who had done nothing wrong. So when the time came to write state constitutions and then the federal constitution, the Founders were very anxious to make sure that nothing like this kind of general warrant would ever be allowed in the United States.
Today’s news proved that they failed. The Writ of Assistance has returned, and the airwaves are full of fearful authoritarians justifying it. Do we really love our chains that much?
The NSA order, justified under Section 215 of the Patriot Act, doesn’t even pretend to limit the order’s scope. There’s no particular target. There’s no limitation of place. Calls between two grandmothers in Peoria are covered just as much as calls between members of suspected terrorist cells. The NSA doesn’t care. They want everything, so that they can criminalize us via algorithm.
Do you think this order is the only one? Sucker. This is merely the tip of the iceberg. The NSA has prepared an enormous data center in Utah to hold precisely this kind of data on your communications. Why should we suppose that they limited these orders to Verizon Wireless in particular?
Stand up! Call your senators and representatives, and get involved with Digital Fourth. If not now, when?
Here at the Boston Regional Intelligence Center, we have watched in sorrow as misinformation about our work to defend America and keep Americans safe here in America has appeared in certain scurrilous publications. We felt it was important to get the truth out about what we do and why we do it.
The FBI has a new proposal afoot to require communications companies doing business in the US to make their communications technologies “wiretap-ready”, to avoid the “going-dark problem”. From Charlie Savage at the New York Times, six hours ago:
The Obama administration, resolving years of internal debate, is on the verge of backing a Federal Bureau of Investigation plan for a sweeping overhaul of surveillance laws that would make it easier to wiretap people who communicate using the Internet rather than by traditional phone services, according to officials familiar with the deliberations. […]
Currently, such orders instruct recipients to provide technical assistance to law enforcement agencies, leaving wiggle room for companies to say they tried but could not make the technology work. Under the new proposal, providers could be ordered to comply, and judges could impose fines if they did not.
Under the proposal, officials said, for a company to be eligible for the strictest deadlines and fines — starting at $25,000 a day — it must first have been put on notice that it needed surveillance capabilities, triggering a 30-day period to consult with the government on any technical problems.
Lord forbid that private companies should offer services that can’t be wiretapped by the government. If the FBI finds itself unable to routinely spy on the communications of people not yet suspected of any crime, that’s a feature, not a bug, and is in fact what the Fourth Amendment requires.
In America, this manic need to collect every iota of data is “helping defeat the terrorists” and “protecting the homeland”. When other countries do it, though, it’s a whole different story. Read on!
Citizen! Were you under the misapprehension that the terrorist-sympathizing Supreme Court had ruled long ago that law enforcement had to get an actual warrant before accessing the content of your phone calls? Has that thought been keeping you up at night, because it allows people to express potentially un-American thoughts without the FBI being able to listen in and protect us? Well, fear no longer: your friendly neighborhood G-Man is on the case!
The NSA has just vigorously denied that their new Utah Data Center, intended for storing and processing intelligence data, will be used to spy on US citizens. The center will have a capacity of at least one yottabyte, and will provide employment for 100-200 people. With the most generous assumptions [200 employees, all employed only on reviewing the data, only one yottabyte of data, ten years to collect the yottabyte, 5GB per movie], each employee would be responsible on average for reviewing 4500 billion terabytes, or approximately 23 million years’ worth of Blu-ray quality movies, every year.
This astounding and continually increasing mismatch shows that we are well beyond the point where law enforcement is able to have a human review a manageable amount of the data in its possession potentially relating to terrorist threats. Computer processing power doubles every two years, but law enforcement employment is rising at a rate of about 7% every ten years, and nobody’s going to pay for it to double every two years instead. Purely machine-based review inevitably carries with it a far higher probability that important things will be missed, even if we were to suppose that the data was entirely accurate to begin with – which it certainly is not.
So why is anybody surprised that Tamerlan Tsarnaev, the elder of the Boston Marathon bombing suspects and one of around 750,000 people in the TIDE database, was not stopped at the border? That facial recognition software wasn’t able to flag him as a match for a suspect? That the fusion centers, intended to synthesize data into actionable “suspicious activity reports”, flag things too late for them to be of any use? That the Air Force is panicking a little at not having enough people to process the data provided by our drone fleet?
They are missing something very simple. We don’t need a terrorism database with 750,000 names on it. There are not 750,000 people out there who pose any sort of realistic threat to America. If the “terrorism watch list” were limited by law to a thousand records, then law enforcement would have to focus only on the thousand most serious threats. Given the real and likely manpower of the federal government, and the rarity of actual terrorism, that’s more than enough. If law enforcement used the power of the Fourth Amendment, instead of trying to find ways round it, it could focus more on the highest-probability threats.
Yes, they would miss stuff. That’s inevitable under both a tight and a loose system. But a tight system has the added advantages that it protects more people’s liberties, and costs a lot less.
UPDATE: With the help of a New Yorker fact-checker, the figure of “400 billion terabytes” above has been corrected to “500 billion terabytes”.
A variety of excellent commentary over the weekend reflected on the civil liberties implications of the Boston Marathon attacks.
Over at Salon, Falguni Sheth and Robert Prasch used a thought experiment (What would have been different if the bombing had happened in 1977, before mass electronic surveillance?) to argue that the vast expenditure on the surveillance state has not had the net effect of either preventing terrorism or making apprehending terrorists more efficient; so why are we doing it, again?
At Popehat, Clark dissects the unprecedented, expensive and ineffectual lockdown of Boston and the western suburbs, and observes that it is only after the lockdown ended and citizens were back outside their doors that the suspect was located.
Last, there’s an excellent analysis and discussion of the Fourth Amendment issues raised by house-to-house searches for a fugitive by (once again) Orin Kerr at the Volokh Conspiracy. Enjoy!
Today, by the finish line of the Boston Marathon, on the same city block as the church I go to, two bombs went off. I feel shocked and sad beyond belief.
My thoughts and prayers are with those who died or were hurt, with their families, and with all the people stranded in Boston on this cold night.
The former district attorney of Middlesex County, Gerry Leone, has taken to the airwaves to talk about how great the efforts have been before this attack to get a Joint Terrorism Task Force going, how well it has been working together, how smooth the state and federal collaboration has been, and how the appropriate response will be to increase random surveillance. Governor Patrick has also echoed his perspective, talking about the need for increased vigilance and random bag searches on the MBTA, which we have covered, and opposed, before.
It won’t surprise regular readers to know that my perspective on this is a little different and more skeptical. Even while massively and systematically abusing the Fourth Amendment, law enforcement wasn’t able to prevent this attack. The amount of data collected through warrantless electronic means by the centers Leone is talking about has been vast, and none of it, none of it, has thwarted a terrorist attack. Now, once again, they have failed us all.