Domestic spying: How they get away with it
One of the persistent questions about the government's domestic spying is, in some form, how do they do it; that is, how do they get away with it, how, in the face of the public's instinctive reaction against such intrusions into our privacy, can they still manage to keep on with it, scandal after scandal, revelation after revelation.
Well, let me give you some idea how.
First, a reminder of a definition: Phone metadata is all the information about a phone call except the actual content. It's what number called what number, from where to where, when, and for how long. Every technical detail of the call.
Okay. In January, months and months after Edward Snowden revealed documents proving that the US government was sucking up the metadata on tens of millions of Americans' phone calls without either warrant or reason to suspect criminal activity, Barack Obama, the Amazing Mr. O, announced that the government would "limit" collection of such phone metadata.
On March 27, the plan to do that finally appeared, one that claimed the program was coming to an end.
Now, remember, for all those months and months, we were repeatedly, loudly, insistently told that collecting this data is vital to national security. That the government had to do this, had to be allowed to do it, it couldn't not do it, because that would be putting the nation at risk, we would face more 9/11s, the terrorists would run free, and what's more, Edward Snowden is either a traitor or a Russian agent for telling us about it. Now, after all those months and months, it became "Aahh, we really didn't need to do this after all."
Under the White House proposal, which has to be approved by Congress, the records of metadata would not be held by the government but by the phone companies, with the government able to query them only with court approval.
The program would also be modified so that the government can only query within two “hops” of a selection term, that is, a particular phone number, rather than three as now.
Okay, there are already a number of red flags here. First, the records are still there, still being collected. The only difference is who holds them. And the government can still demand to see them. I'm not sure why that's supposed to make us feel better.
Second, the difference between warrantless search and search via a court-issued warrant is in this case little more than semantics if it's even that. Such warrants would be issued by the secretive Foreign Intelligence Surveillance Court, or FISC, created by the Foreign Intelligence Surveillance Act, or FISA, in 1978. Another reminder: FISA was passed in response to revelations of earlier violations of privacy and rights by the spooks. This is by no means the first time we have dealt with this kind of thing.
So now consider the record of the FISC, In the period 1979-2012, that court was presented by the feds with 33,949 applications for warrants. Of those, only 504, a mere 1.5%, were even modified. Only 11, or 0.03%, were rejected and four of those were later modified and accepted. The idea that this court acts as a guarantor of our rights, a protector of our privacy, is ludicrous.
Another thing is the "hops." These are the degrees of separation from the original number. Under the plan, NSA can query the metadata of an individual if the court approves - and then the metadata of all of that person’s contacts, and then in turn the metadata of all of theirs. You know about the idea of "six degrees of separation," the idea that any person can be connected to any other person in no more than six hops. A 2011 study found that when you include online social media, the average number of degrees of separation between any two people in the world is not six, but roughly 4.74.
The point is, limiting the search to two hops means nothing, since by then you are already hitting the limits of actually useful information. Go beyond and you start to drown in data. You're no longer looking for a needle in a haystack, you have trouble even finding the right haystack.
So put bluntly, these so-called changes mean essentially nothing and despite the claim the program is "ending" it's really being continued, just in a slightly-different form. This is long-standing practice among the spooks and their enablers: J. Edgar Hoover used to do it all the time. Every time he was found having the FBI do something it shouldn't and was told to stop and to destroy the relevant files, we would just rename the program, refile the files, and declare to all and sundry that the old program no longer existed.
So at least give the White House credit for this: They learned from the best.
But that's not all. Because, as I said, this is how they do it.
An examination just last week of the White House proposal by Mark Hosenball and Alina Selyukh of Reuters found that the "more limited" program may well require phone companies to collect and maintain even more information about our phone calls than they already do, and do it for the specific purpose of having those records available to government spies.
In fact, the telcoms may now be collecting only 25-33 percent of the total US metadata they are authorized to collect. One reason is the popularity of flat-rate programs: Because the companies don't need to keep track of your calls so they know which are toll calls for which you would be charged, they don't collect the metadata on all calls because they don't need it.
But under the White House’s plan, telecoms “would be compelled by court order to provide technical assistance to ensure that the records can be queried and that results are transmitted to the government in a usable format and in a timely manner.” In other words, the spooks would have to be able to get the metadata they want, which means the phone companies have to have it in order for them to get it.
In other words, this "reform" of the government's spying on us not only does not in any effective way limit the government's ability to spy on us, it would enable them to spy on even more of us - while at the same time claiming the program is being put to an end.
And that, my friends, is how they do it.