Thursday, June 13, 2013

Left Side of the Aisle #112 - Part 5

NSA spying

All right, you have to know that I was going to talk about this. The big news of the past week was the twin revelations about massive warrantless surveillance of Americans.

One revelation was that the federal government has been actively and secretly collecting the telephone records of every telephone call, both landline and mobile, made within, into, or out of the United States. Data about all your phone calls is being sucked up by the feds and stored for later retrieval.

That's been reported before, yes, in fact I mentioned it twice last year on this show, once in May and again in September. But two things broke through the "ho-hum" these reports have gotten in the past. One was that this was the first clear evidence that the Obama crowd was continuing and even expanding the sweeping surveillance of Americans that the Bush gang initiated.

Second, this time there was a smoking gun: The Guardian, a leading newspaper in the UK, got hold of a copy of the court order authorizing a three-month renewal of an order to Verizon to turn over "metadata" records on an "on-going, daily basis."

Those records don't include the content of the calls, but they do include what number you called from, what number you called, when you called, the routing information to transmit the call, which can reveal where each party was as the time of the call, and how long you talked. For every single Verizon phone call in the US. It doesn't include the content? As even Joe Biden pointed out, you don't have to listen to the content of the calls to create a picture of your life that is, quoting him, "very, very intrusive."

The court order obtained by the Guardian only mentions Verizon specifcally but it would be bizarre to imagine that other companies were not also so ordered, and in any event, NBC News soon reported that the government has been collecting records on every phone call made in the US - all of it being done without even making a pretense of the "individualized suspicion" that's a hallmark of what's required by the Fourth Amendment.

That report about the blanket collection data on all phone calls was quickly followed by the revelation of a program code-named PRISM, which involves connecting directly into the central servers of nine leading US Internet companies, those being Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, and Apple, with Dropbox, the cloud storage and synchronization service, described as “coming soon.” The NSA can extract audio, video, photographs, e-mails, documents, and connection logs. Remarkably, Director of National Intelligence James Clapper admitted to the program's existence.

All the companies have denied involvement in or in some cases even knowledge of PRISM, but it's quite possible they're hanging their denials on a very small nail: The documents describing the program refer to being plugged into the companies' central servers, but another classified report refers to NSA “collection managers" sending instructions to equipment installed at company-controlled locations - that is, the NSA can't send instructions to the central servers, just to its own equipment that is linked to the central servers. In terms of the issue at hand, that's an example of what I call a distinction without a difference.

Because PRISM obviously involves collecting content - in fact, in the case of Skype calls, it can include audio and even video - the spooks have to make at least something of a nod to Constitutional protections, especially since the NSA is barred by law from actual surveillance of Americans within the US, it's only supposed to do it to "foreigners."

So the PRISM program is not a sweeping dragnet like the phone data. The NSA is capable of pulling out anything it likes from a company's data stream, it's all there for the taking, but under current rules the agency does not try to collect it all.

Instead, analysts key in search terms that are designed to produce at least 51 percent confidence in a target’s “foreignness,” which is hardly what anyone could call a tough standard to meet; in fact it's about the weakest standard you could have and still claim to have one. In a great line, John Oliver said on the Daily Show that "it's flipping a coin plus one percent."

The result is that even when no American is singled out for targeting, the NSA routinely collects a great deal of American content. That is described as “incidental" and training materials for new analysts tell them “it’s nothing to worry about.”

But of course it is. Analysts are typically taught to chain through contacts two “hops” out from their target. That means, at a minimum, everyone in the suspect’s inbox or outbox is swept in along with everyone in all those people's in and out boxes and everyone in all those people's in and out boxes and the “incidental collection” expands exponentially. This is “six degrees of separation” played out in the real world.

The response from the White House to all this was, not surprisingly, that this was all perfectly legal, all according to law, nothing to see here, move along, go back to watching The Bachelorette or whatever. In fact, The Amazing Mr. O inisted that the program is essential - Remember what I said last week in reference to DNA testing that whenever official types get a tool it instantly becomes absolutely essential for the preservation of all that is good and decent and chaos will reign if it's taken away? Well, he said these programs are essential to combatting terrorism. Quoting him, the program "may identify potential leads with respect to folks who might engage in terrorism."

That is, again, his defense for this spying being "essential" is that they "may identify potential leads with respect to folks who might engage in terrorism." Just how many weasel words can you fit into one sentence?

If you're looking to Congress for relief, don't. One thing the White House is right about is that members of Congress knew about this. Every member of the Senate was informed. Ron Wyden and Mark Udall tried to raise the alarm, but as members of the Senate Intelligence Committee they were bound by an oath to not reveal the details, because they were classified. The point, however, is that members of Congress, particularly in the Senate, had multiple opportunities to rein in the program or at least establish some transparency and tighter controls - and they failed to do so time and time again, being willing - most of them - to sacrifice the rights and privacy of the public rather than risk being accused of voting against "national security" or of being "soft on terrorism."

So what you heard instead was a boatload of CYA.

Sen. Dianne Feinstein, the chair of the Senate Intelligence Committee, said "I know that people are trying to get to us. This is called protecting America."

Sen. Saxby Chambliss, ranking member of the committee, said "This is nothing particularly new," a sentiment echoed by Senate Majority Leader Harry Reid, who said "Everyone should just calm down and understand this isn't anything that's brand new."

So it's been going on for years. That's supposed to make me feel better?

Sen. Lindsey Graham, demonstrating his usual grasp of reality, said that he was "glad" the NSA is collecting the phone records before saying that "you just can't track people's phone calls," that there must be a reasonable belief that the people being surveilled are involved in terrorism - which is exactly what the program does not do. He is such a twerp.

Rep. Jim Sensenbrenner, a conservative GOPper who was one of the authors of the provision of the Patriot Act which the White House and its defenders are using to claim this is all legal, made that same point: In a letter to Attorney General Eric Holder, he asked “How could the phone records of so many innocent Americans be relevant to an authorized investigation as required by the Act?”

In fact, it can't. But don't expect Congress to do a damn thing about it, not when that would involve admitting they had screwed up so badly for so long.

More on this and on the hero who revealed the phone spying, next week.


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