Tag: Foreign Intelligence Surveillance Act

Further Thoughts on Prism

A few notes as this story evolves:

You should read the NYT’s story about PRISM. It makes everything consistent: Greenwald’s original report, the tech companies denial and the reports we’ve been hearing off and on for the last seven years. Money quote:

Each of the nine companies said it had no knowledge of a government program providing officials with access to its servers, and drew a bright line between giving the government wholesale access to its servers to collect user data and giving them specific data in response to individual court orders. Each said it did not provide the government with full, indiscriminate access to its servers.

The companies said they do, however, comply with individual court orders, including under FISA. The negotiations, and the technical systems for sharing data with the government, fit in that category because they involve access to data under individual FISA requests. And in some cases, the data is transmitted to the government electronically, using a company’s servers.

“The U.S. government does not have direct access or a ‘back door’ to the information stored in our data centers,” Google’s chief executive, Larry Page, and its chief legal officer, David Drummond, said in a statement on Friday. “We provide user data to governments only in accordance with the law.”

Statements from Microsoft, Yahoo, Facebook, Apple, AOL and Paltalk made the same distinction.

But instead of adding a back door to their servers, the companies were essentially asked to erect a locked mailbox and give the government the key, people briefed on the negotiations said. Facebook, for instance, built such a system for requesting and sharing the information, they said.

The data shared in these ways, the people said, is shared after company lawyers have reviewed the FISA request according to company practice. It is not sent automatically or in bulk, and the government does not have full access to company servers. Instead, they said, it is a more secure and efficient way to hand over the data.

Tech companies might have also denied knowledge of the full scope of cooperation with national security officials because employees whose job it is to comply with FISA requests are not allowed to discuss the details even with others at the company, and in some cases have national security clearance, according to both a former senior government official and a lawyer representing a technology company.

This is less alarming than the initial reporting but still very very concerning. Keep in mind that, according to the Verizon story, the FISA court has been granting extremely broad warrants for surveillance. Keep in mind also that, according to the FISA laws, communications involving US citizens can be monitored.. Think about how many people overseas are on Twitter, on Facebook, use Google or read this very blog.

Do we have reason to be worried that these powers — which were a secret until now — will be abused? We already have reports that electronic communications of innocent Americans have been “accidentally” intercepted. The NSA is also trying to prevent the release of a Court opinion finding that they had engaged in unconstitutional spying.

And even if this weren’t the case, we know that these powers, especially when they lurk in secret, only have a tendency to expand. Powers intended for terrorism rapidly extend to drugs (which often involve foreign agents) and are then extended to ordinary crime. Think about the Constitution-shredding tactics used in the War on Drugs — asset forfeiture, for example — and how they been extended beyond the War on Drugs. Once you give our government a hammer, they will get the courts to rule that everything is a nail. I’m not particularly moved by the arguments — put forward by DNI Clapper and his apologists — that national security has been compromised. Not when some of our basic liberties are at stake. I’m pretty sure the terrorists are either completely clueless or avoid electronic communications, having assumed that something like this was going on.

The one thing I keep hearing is that we need to have a public debate about this. But keep in mind that the public debate hasn’t happened yet and is only happening to the extent that it is because of the leak. The Administration’s defenders would rather we not have had the debate at all.

Ah, the Administration’s defenders. Libertarians and some conservatives are responding to this revelation as you might expect. But the response of the Left Wing is disappointing if unsurprising. You know how we’ve used the terms “Bush Derangement Syndrome” and “Obama Derangement Syndrome”? They describe someone who has an irrational hatred of one of the two Presidents to the point where they always assume the worst motivations, the worst intentions and instantly believe any absurd story that emerges about them. Well, in the past few days, we’ve been seeing a lot of “Obama Defense Derangement Syndrome”: people who believe that any criticism of Obama falls into the ODS category (or is a sign of crypto-racism). Their increasingly mindless defense of the President is not based on any facts or any actions of his; they are based on who his critics are. So if Rand Paul disagrees with the President … well, Rand Paul is a nut so the President’s actions must be defensible.

The ODDS starting immediately with people saying the Prism slides didn’t look professional and might be faked. After they were confirmed, they jumped on the tech companies denial of the existence of the system (conveniently ignoring the Greenwald specifically mentioned those denials in his original report). Then they said that Bush started it (true enough; but Obama ran against that and has now brought it to its apotheosis). Now they’re claiming that we had a public debate (the tense is wrong; we’re having one now, thanks to the leak).

They have further parroted the President’s lie that Congress and the Courts signed off on all this without a qualm. But Senators Udall, Wyden and Paul were among many who objected to these powers, who tried to get basic civil liberties protections into the laws and warned us about the surveillance state that was being built. Senator Sensenbrenner, one of the architects of the Patriot Act, blasted the President for going beyond what was intended and not getting Congressional approval. As noted above, the Courts have pushed back on this, to the extent that they’ve been consulted. And, it bears repeating, much of the detail is in secret with many participants forced into silence under penalty of law. Citing the Sunday Morning Talkshow Dipshits as though they were an authority is simply abandoning your duty as a citizen.

The biggest tell for ODDS is ad hominem attacks on his critics. And, in this case, it’s attacks on Glenn Greenwald. I have my issues with Greenwald. I agree with him on civil liberties but the list of things I disagree with him on — Bradley Manning, Israel, the War on Terror, healthcare — is very long. But to suggest, as many are doing, that his revelation is based on some kind of personal animus against the President is ridiculous. Greenwald calls it as he sees it. He was highly critical of Bush, too. He is highly critical of almost everyone. He is always inflammatory on the subject of civil liberties. This sometimes leads him to overstate his case or assume the worst. But that’s his way and it always has been.

In this case, he has a legitimate story: the federal government has now admitted that the infrastructure exists for massive electronic surveillance; that they are already using this with FISA on foreign targets; that they have been able to get broad court orders to get meta-data from cell phone companies (which can be as intrusive as actual wiretapping). Claims that this reporting is “irresponsible” or “hysterical” misses that we should be kind of hysterical about broad surveillance powers. Reporting on this kind of government program is the press’s job. And responding to it by saying that we should just trust our government, that we should let Obama make these decisions, that “no one elected Glenn Greenwald” is subservient hogwash.

There is a need for our government to keep some things secret (and Greenwald specifically refused to publish technical details of PRISM for that reason). All Americans understand that there are things the government has to do on the quiet. But the creation of a massive surveillance state — a state that could be turned on us quite easily — is not something we should just trust our politicians to execute, no matter who they are or how much of a tingle they might give us up our leg.

Postscript: The identity of the leaker is now known. He has fled to Hong Kong, citing their commitment to civli liberties. This frankly strikes me as deranged, given Chinese law. I suspect the real reason for going there is to avoid extradition.

PPS: As for the political impact of all this, I suspect it will be small. Unfortunately, the American people are all too willing to ignore encroachments on their liberty.

The Surveillance State

Holy shit:

Justice Department documents released today by the ACLU reveal that federal law enforcement agencies are increasingly monitoring Americans’ electronic communications, and doing so without warrants, sufficient oversight, or meaningful accountability.

The documents, handed over by the government only after months of litigation, are the attorney general’s 2010 and 2011 reports on the use of “pen register” and “trap and trace” surveillance powers. The reports show a dramatic increase in the use of these surveillance tools, which are used to gather information about telephone, email, and other Internet communications. The revelations underscore the importance of regulating and overseeing the government’s surveillance power.

Here’s two graphs, one showing the number of orders, the other the number of people affected:

That, my friends, is one exploding surveillance state. Under Obama, the number of people being surveilled has tripled. These two methods allow police, without a warrant, to monitor every number you call and that calls you. Thanks to the PATRIOT Act, they can also get whatever e-mail addresses and IP’s you interact with. They can track your movements from cell phone towers. They are not supposed to listen to calls or read e-mails. But there really isn’t a mechanism to prevent it or punish it either.

Still, the allowed information alone, according to most researchers, is enough to reveal an astonishing amount of information about you. Do we want to take bets on whether this is being used exclusively to fight terrorism? Remember, as Alex pointed out, they can now keep this information, even on non-terrorism cases, for five years. Remember that TSA has already expanded their mission to find people with drugs and other contraband. This isn’t about terrorists blowing things up. This is a generalized tool designed to whittle away at our privacy. And Obama is exploiting it.

As ever, we have to look back and acknowledge that Lee was prophetic:

As I’ve written extensively before, Bush is only a temporary occupant of the White House, and every power that we give to him now will be available to every president who follows him. So many people don’t have a problem with these type of warrantless searches because, on some level, they trust Bush to do the right thing. My problem is that a future president could very easily use these same powers to do some very, very bad things, and as a conservative, I can’t support setting up this type of perilous political situation.

Pen register and trap and trace doubled under Bush and were rising steadily when he left office. But he was a piker compared to the uber-liberal professor now ensconced in the Oval Office who basically took these powers, said “thanks” and exploded them beyond all measure.

The ACLU, bless them, has been all over Obama on this, fighting numerous legal battles to just to find out what they’re doing. But the rest of the Left? The people who called Bush a fascist? You can hear the crickets.