As the TSA Turns

The NSA story is developing a little too fast for more than a periodic roundup (we did have an inflammatory story last night that the NSA was tapping phones without a warrant, but that now appears to be bogus).

Moving on…

The Rise and Scale of Surveillance

The AP has a story about how PRISM was developed. The number of requests for information continued to ramp up and PRISM was created to ease the process rather than have agents appear in person. So many requests were put in — more on that in a moment — that it was impossible to confirm the details. More:

But interviews with more than a dozen current and former government and technology officials and outside experts show that, while Prism has attracted the recent attention, the program actually is a relatively small part of a much more expansive and intrusive eavesdropping effort.

Americans who disapprove of the government reading their emails have more to worry about from a different and larger NSA effort that snatches data as it passes through the fiber optic cables that make up the Internet’s backbone. That program, which has been known for years, copies Internet traffic as it enters and leaves the United States, then routes it to the NSA for analysis.

Whether by clever choice or coincidence, Prism appears to do what its name suggests. Like a triangular piece of glass, Prism takes large beams of data and helps the government find discrete, manageable strands of information.

The fact that it is productive is not surprising; documents show it is one of the major sources for what ends up in the president’s daily briefing. Prism makes sense of the cacophony of the Internet’s raw feed. It provides the government with names, addresses, conversation histories and entire archives of email inboxes.

How many requests for specific information does PRISM ask for? In the second half of last year, Facebook got 9-10,000 requests involving 19,000 users. Other companies are reporting similar levels. Defenders of the program are saying, “Well, that’s not a lot considering how many users Facebook, Google, etc., have.” Maybe. But it IS a lot when you consider how many active terrorists there are (probably in hundreds at most) and how few attacks these efforts have supposedly thwarted (a few). And that’s just six months of requests.

The defenders are also making a big deal of the NSA’s claim that they only asked for details on 300 phone numbers in 2012. But keep in mind that they collected metadata on millions and metadata is a big deal, frequently as revealing and invasive as a wiretap.

In fact, the defenders of the President are frankly spouting a lot of nonsense. They keep claiming PRISM wasn’t a big secret and Glenn Greenwald didn’t break anything new; but then they brand Snowden a traitor and claim that he’s compromised the War on Terror. They tell us this isn’t a big deal and we all assumed our electronic communications were monitored; but then they say the program is absolutely vital to success. When you break it down, they are simply scrounging around desperately for a reason to believe that Obama hasn’t betrayed everything he said in Election 2008. I expect them to continue to scramble.

Nothing to Hide

There is, however, one defense with which I have no patience for at all. The Obamaphiles are in the slow stages of realizing who exactly they elected. But the other crowd are simply ignorant subservient cattle. They are the ones running around saying that even the most invasive program should be acceptable for people with “nothing to hide.”

Moxie Marlinspike (is that her real name? Seriously? Awesome!) has a great response. After pointing out, as we have previously discussed, that the federal government has so many laws and so many obscure laws that practically everyone is a felon, she brings up a critical point:

Over the past year, there have been a number of headline-grabbing legal changes in the U.S., such as the legalization of marijuana in Colorado and Washington, as well as the legalization of same-sex marriage in a growing number of U.S. states.

As a majority of people in these states apparently favor these changes, advocates for the U.S. democratic process cite these legal victories as examples of how the system can provide real freedoms to those who engage with it through lawful means. And it’s true, the bills did pass.

What’s often overlooked, however, is that these legal victories would probably not have been possible without the ability to break the law.

The state of Minnesota, for instance, legalized same-sex marriage this year, but sodomy laws had effectively made homosexuality itself completely illegal in that state until 2001. Likewise, before the recent changes making marijuana legal for personal use in Washington and Colorado, it was obviously not legal for personal use.

Imagine if there were an alternate dystopian reality where law enforcement was 100% effective, such that any potential law offenders knew they would be immediately identified, apprehended, and jailed. If perfect law enforcement had been a reality in Minnesota, Colorado, and Washington since their founding in the 1850s, it seems quite unlikely that these recent changes would have ever come to pass. How could people have decided that marijuana should be legal, if nobody had ever used it? How could states decide that same sex marriage should be permitted, if nobody had ever seen or participated in a same sex relationship?

Precisely. This applies to much of the social change that our society has undergone. Interracial marriage would still be illegal if the Lovings hadn’t broken the law and challenged it in the courts. Segregation was broken because MLK was willing to break the law and be punished for it. The progress we have made on property rights and eminent domain have occurred when citizens have been unwilling to meekly acquiesce to the wishes of their government.

No one is saying there is value to be gained in social experimentation in terrorism, obviously. But — as I have said over and over again — the question of PRISM powers being extended to drugs, prostitution, sex, marriage, taxes, etc. is not if, it’s when.

More from Don Boudreax:

1. Is your lack of concern with government snooping a result of your confidence that (a) you, your loved ones, and your friends consistently act in ways that do not violate (what you believe to be) today’s government policy; (b) government will seldom-enough err in interpreting the contents and motives of your, your loved ones’ and your friends’ activities; and (c) that today’s government policy targets and penalizes only those private activities that “ought” to be targeted and penalized by government? If so, are you also confident that government policy will never change to render those same activities of you, your loved ones, and your friends unacceptable to government tomorrow?

2. Or is your lack of concern with government snooping due instead to your confidence that you, your loved ones, and your friends will always not only wish to – but will also always successfully and in time – adjust your activities in ways that render those activities acceptable to government, regardless of the specific contents and motives of whatever government policies reign at the moment?

Exactly. These electronic records go back for many years, through many different legal regimes. A broad reach into your electronic past could uncover things that aren’t illegal now but were illegal then.

There’s another thing. Massive electronic surveillance can uncover things that, while not illegal, are embarrassing. The government and its bootlickers have often taken great delight in revealing embarrassing details about people they don’t like (such as some of the personal smears on Snowden). Anyone who has an affair, anyone who has done something they shouldn’t, anyone with porn on their computer, anyone with humiliating pictures or cringe-inducing e-mails or, um, blog posts they wish they could flush down the memory hole has “something to hide”.

“I have nothing to hide” is the attitude of a slave, not a citizen who is on equal footing with his government. “I have nothing to hide” is an indication that you don’t know what you have to hide. “I have nothing to hide” is an admission that your life is not your own.

The Man of the Hour

As for Edward Snowden, while I still appreciate the reveal of PRISM and still rail against those who call him “traitor” just because he crossed the President, I am growing less sympathetic by the minute. The latest revelation is that he revealed secret snooping on Dmitri Medvedev. While I oppose domestic surveillance, I have absolutely no problem with our government spying on other countries, particularly those as powerful as China and Russia. That is, in fact, the President’s job. Spying on other countries — even our allies — is not shameful, disgraceful, untoward, undiplomatic or wrong. It is how the world works. We should assume these countries are spying on us. Why should we not return the favor?

The attempts by Snowden and some of his allies to cast foreign surveillance as wrong reminds me of a quote from Robert Heinlein. In 1960, one of our U-2 spy planes was downed on a reconnaissance mission inside the Soviet Union. In response to those who said the U-2 flights were “shameful”, Heinlein uncorked this:

Espionage is not illegal under International Law. Neither is it immoral. The penalty for getting caught at is is very high. It usually means the spy’s neck. It is not illegal under US laws for us to attempt to spy on the USSR, nor is it illegal for them to attempt to spy on us. Nor, in either case, is it an act of war. Throughout history every country has striven to learn the military secrets of a potential enemy, and to protect its own. Spying is wise and necessary insurance against utter military disaster.

That we have been conducting photo surveillance over the Soviet Union so successfully and for four vital years is the most encouraging news of the past decade … If Mr. Eisenhower had failed to obtain by any possible means the military intelligence that the USSR gets so easily and cheaply about us, he would have been derelict in his duty.

So if you hear anyone whining about how “shameful” the U-2 flights were, take his lollipop away and spank him with it.

If Edward Snowden is revealing our espionage secrets to Russia and China — and it now appears that he is — he deserves a lot more than a spanking. He deserves to be imprisoned for espionage.

That does not, however, change the nature of PRISM or the rightness or wrongness of domestic surveillance. Just as Eisenhower had a duty to spy on the Soviet Union, Obama has a duty to spy on terrorists. But in both cases, these powers need to be tightly bound, strictly controlled and not used for other purposes. The revelation of PRISM is a big step in establishing those limits, even if the person who revealed them turns out to be a disloyal scumbag.

Snowden, Obama and the Cult of the Presidency

I have thought from early on that the revelation of the government’s massive surveillance operation is a good thing and little that has happened in the past few days has altered that opinion. Already, we are seeing some good coming out of Edward Snowden’s revelations: Google is asking to publish more information; a bipartisan group of Senators want this dragged out into the open; the ACLU is suing. The result of all this will be the very transparency and debate that Obama claims to want (but really doesn’t).

And it should go this way because the reassurance of “trust us” simply isn’t going to cut it. Let’s assume, for the moment, that the safeguards for our data are in place that information can only be obtained on a court order. Fine. But let’s consider the history of the IRS: political persecutions, “seizure fever”, overzealous prosecutions, agents abusing their privelege to snoop into the financial records of celebrities and neighbors. Let’s consider the history of COINTELPRO. The fact is that the government’s investigatory powers have a history of being abused. This is not a hypothetical. This is not some paranoid Glenn Beck fever dream. Abuses have happened; abuses are happening. You don’t have to be a crazy libertarian to be worried that a secret program with the power to look at our electronic data has a massive potential for abuse.

Given the overwhelming case for great transparency, the defenders of Obama are focusing their attention on the leaker himself. Snowden, of course, is being hailed as a hero in many quarters. Despite my gratitude for the leak, I’m not prepared to proclaim Snowden a hero quite yet. I am reserving judgement until we know what was revealed, to whom and for what reason.

However, the effort to demonize him is also running full force. It can be as mild as David Brooks’ bizarre psychoanalysis to as heavy as Jeffrey Toobin’s accusation of “sabotage” (although Snowden didn’t actually sabotage anything or break anything) all the way to several prominent senators accusing him of treason.

The treason charge is, by far, the most troubling. As Dylan Matthews point out, treason is actually defined in the Constitution:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

Snowden obviously didn’t levy war on the United States. And “aid and comfort” is awfully difficult to prove. For example, the Rosenbergs were not charged with treason for giving our atomic secrets to the Soviet Union because we technically weren’t at war with them. Neither Hanssen nor Ames were charged with treason. So while it’s likely that Snowden broke the law, calling him a “traitor” is a bit hyperbolic given what we know.

(Of course, one thing to keep in mind every time the Administration or their apologists talk about how crazy Snowden is: this crazy person had access to top secret information. In fact about 500,000 people have top secret clearance right now.)

Why am I splitting this hair? Because I think it’s important to shine a light on what people like Diane Feinstein and John Bolton and and Bill Nelson and others consider treason. They seem to be defining it as crossing the will of the President. This isn’t about leaks. As Alex noted last week, the Administration was more than happy to leak classified information to the makers of Zero Dark Thirty when it suited their purposes. Just this week, they leaked info about disrupting al-Qaeda’s online magazine. And you really absolutely must read this piece by Jack Schaefer:

Yet even as the insults pile up and the amateur psychoanalysis intensifies, keep in mind that Snowden’s leak has more in common with the standard Washington leak than should make the likes of Brooks, Simon and Cohen comfortable. Without defending Snowden for breaking his vow to safeguard secrets, he’s only done in the macro what the national security establishment does in the micro every day of the week to manage, manipulate and influence ongoing policy debates. Keeping the policy leak separate from the heretic leak is crucial to understanding how these stories play out in the press.

Secrets are sacrosanct in Washington until officials find political expediency in either declassifying them or leaking them selectively. It doesn’t really matter which modern presidential administration you decide to scrutinize for this behavior, as all of them are guilty. For instance, President George W. Bush’s administration declassified or leaked whole barrels of intelligence, raw and otherwise, to convince the public and Congress making war on Iraq was a good idea. Bush himself ordered the release of classified prewar intelligence about Iraq through Vice President Dick Cheney and Chief of Staff I. Lewis “Scooter” Libby to New York Times reporter Judith Miller in July 2003.

After recalling a number of incidents where Obama and his minions have leaked classified info for their own purposes, he concludes:

The willingness of the government to punish leakers is inversely proportional to the leakers’ rank and status, which is bad news for someone so lacking in those attributes as Edward Snowden. But as the Snowden prosecution commences, we should question his selective prosecution. Let’s ask, as Isikoff did of the Obama administration officials who leaked to Woodward, why Snowden is singled out for punishment when he’s essential done what the insider dissenters did when they spoke with Risen and Lichtblau in 2005 about an invasive NSA program. He deserves the same justice and the same punishment they received.

We owe Snowden a debt of gratitude for restarting—or should I say starting?—the public debate over the government’s secret but “legal” intrusions into our privacy. His leaks, filtered through the Guardian and the Washington Post, give us a once-in-a-generation opportunity to place limits on our power-mad government.

This isn’t about the leaks. This isn’t about security. If we had really caught a bunch of terrorist with PRISM, you can bet your bottom dollar that Obama would be leaking details about PRISM to the media: probably more details than Snowden has leaked. So spare us the lectures about how leaking secure information is treason.

No, this about loyalty. This is about only leaking information that the Administration thinks should be leaked and nothing else. Controlling the flow of classified information is, of course, part of the President’s job. But when that information is leaked to the American people for their supposed benefit, it may be a crime but it is not treason. Treason is a crime against the nation, not against the President. And the people who are screaming treason and want Snowden tied up and shot are conflating the two, subscribing to the belief that the President is the country.

Even if we posit that Snoweden is cuckoo, his actions are enabling people who aren’t to make some changes that just might protect our privacy. These actions would not be taking place without the leak. Is that so bad? Is that betrayal? Is that treason?

Only if you worship the Cult of the Presidency.

Update: The latest information is that Snowden is talking to the Chinese press and has told them that the US is hacking Chinese sites. If he is revealing secret information to them, then Snowden is committing espionage for a foreign power, similar to the Rosenbergs or Hannsen. That’s why I was reluctant to call him a hero.

That’s still not technically treason. And it’s worth noting that the accusations of treason were leveled at Snowden for revealing this information to the American public long before any meeting with China. So good on him for revealing this information to us; shame on him if he is revealing technical details to China as well.

The Bomb Drops

It looks like yesterday’s Verizon story was, as many suspected, the tip of the iceberg:

The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio, video, photographs, e-mails, documents and connection logs that enable analysts to track a person’s movements and contacts over time.

The highly classified program, code-named PRISM, has not been disclosed publicly before. Its establishment in 2007 and six years of exponential growth took place beneath the surface of a roiling debate over the boundaries of surveillance and privacy. Even late last year, when critics of the foreign intelligence statute argued for changes, the only members of Congress who know about PRISM were bound by oaths of office to hold their tongues. …

The technology companies, which participate knowingly in PRISM operations, include most of the dominant global players of Silicon Valley. They are listed on a roster that bears their logos in order of entry into the program: “Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, Apple.” PalTalk, although much smaller, has hosted significant traffic during the Arab Spring and in the ongoing Syrian civil war.

I have to put Sal 11000 Beta to bed so I commend you over to Hot Air’s coverage, which is extensive and troubling. This has been building up for over a decade and will culminate, this fall, in the construction of a facility that will basically store all internet communications.

Hope you like Big Brother. ‘Cuz we’re living it now.

Update: A few more thoughts. The story is still in breaking stages. Some government sources are claiming they are not, in fact, data mining. We’ll see what comes out. But let’s proceed with the idea that these reports are accurate — that meta-data on all communications is being stored and that actual data from computer communications is being monitored.

First, I think we need to appreciate just how deep the rabbit hole goes here. Consider that, earlier this week, the Supreme Court gave authorities permission to, upon any arrest, take your DNA and run it against a database of crimes. If the government really is storing all your internet communications (the technical challenges boggle the mind) then, upon arrest, they can search your internet record — which currently has no warrant protection — for anything. Did you send a nudie picture to someone when you were 15? Did you have an IRC where you talking about getting high? Did you get a pop-up window with cartoon porn in it? That’s all in play now.

Second, this thing has been created by both parties. It started in 2007 under George Bush and is reaching its apotheosis under Barack Obama. Neither party has seriously opposed any provision of the Patriot Act or supported any privacy protections. We are being double-teamed here, people.

Third, the usual suspects are emerging to claim that these programs are necessary and have probably already saved us from terrorism. I am highly dubious of this. We have seen this kind of thing before when Osama bin Laden was killed. Everyone who supported a questionable or illegal program claimed it played a key role. But moreover, is this a price we are willing to pay? To have all of our communications monitored? Are we willing to live Big Brother because somehow, somewhere, someone might set off a bomb? If you think it is worth it, please do not ever ever quote Benjamin Franklin on the subject of security and liberty.