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Thursday, June 6, 2013

Surveillance State

A slue of reports today on the Administration's surveillance state:

The New York Times reports that Judge Roger Vinson of the Foreign Intelligence Surveillance Court authorized a warrant in April requiring Verizon Business Network Services  to turn over “on an ongoing daily basis” to the National Security Agency all call logs “between the United States and abroad” or “wholly within the United States, including local telephone calls."

Forbes further elaborates on the warrant:

The National Security Agency has long justified its spying powers by arguing that its charter allows surveillance on those outside of the United States, while avoiding intrusions into the private communications of American citizens. But the latest revelation of the extent of the NSA’s surveillance shows that it has focused specifically on Americans, to the degree that its data collection has in at least one major spying incident explicitly excluded those outside the United States.

In a top secret order obtained by the Guardian newspaper and published Wednesday evening, the FBI on the NSA’s behalf demanded that Verizon turn over all metadata for phone records originating in the United States for the three months beginning in late April and ending on the 19th of July. That metadata includes all so-called “non-content” data for millions of American customers’ phone calls, such as the subscriber data, recipients, locations, times and durations of every call made during that period.

Aside from the sheer scope of that surveillance order, reminiscent of the warrantless wiretapping scandal under the Bush administration, the other shocking aspect of the order its target: The order specifically states that only data regarding calls originating in America are to be handed over, not those between foreigners.

* * *

Though the classified, top secret order comes from the FBI, it clearly states that the data is to be given to the NSA. That means the leaked document may serve as one of the first concrete pieces of evidence that the NSA’s spying goes beyond foreigners to include Americans, despite its charter specifically disallowing surveillance of those within the United States.
 The Forbes article goes on to note that the NSA specifically denied to Congress that it was intercepting communications between Americans.

Unfortunately, the NSA was not specifically lying, NSA’s Director Keith Alexander testified that the NSA was not intercepting the communications. That is correct in two senses--Verizon is doing the interception, and the NSA is not interested (at least according to the order) in the contents of the communications. Rather, it is collecting data to map networks and links between people. That is, using this information, it would be able to look at a person and the strength of that person's link to another based on the frequency and length of calls. Presumably, they could then review the content of the communication at a later time.

Alexander also testified that the FBI would have to be the lead in any such effort. Well, the FBI did take the lead--it made the request on behalf of the NSA. In other words, the NSA is exploiting a loophole--a loophole large enough to swallow the rule.

Meanwhile, Big Sister (aka, the Department of Homeland Security) maintains that it has the right (i.e., complete discretion) to inspect and copy data from cell phones and computers of anyone entering the United States. (I would note that DHS has previously asserted that it actually can do this within a broad zone near the border--not just at the border).

The FBI, not content with merely letting the NSA sidestep it restrictions on domestic surveillance, is also wanting communication companies to build in "backdoors" to allow easier wiretaps.

The FBI is unhappy that there are communications technologies that it cannot intercept and wants to require that software makers and communications companies create a back door so they can listen in when they desire.

But a team of technology experts warns the move would hand over to the nation’s enemies abilities they are not capable of developing for themselves.


The Washington Post reported the issue is being raised by the FBI because “there is currently no way to wiretap some of these communications methods easily, and companies effectively.”

The solution, according to the FBI, is to fine companies when they fail to comply with wiretap orders, essentially requiring all companies to build a back door for wiretap capabilities into all their communications links.

“The importance to us is pretty clear,” FBI general counsel Andrew Weissman said in the report. “We don’t have the ability to go to court and say, ‘We need a court order to effectuate the intercept.’”
Intelligence agencies are antithetical to a free society. That is why they must be carefully and rigidly constrained. The Patriot act removed and/or weakened the constraints. It should be repealed. We also need to examine whether the threat from terrorism (which is actually very limited in the U.S. compared to other countries) is worth the money and resources being devoted to it. I would further suggest that if the NSA has the excess time and resources to devote to domestic intelligence, it  may be time to reexamine the size of its budget.

(H/t for all articles to the Drudge Report).

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