It wouldn’t be an American political scandal if there weren’t an element of farce in it. There is a whole periodic table of farce in this one, so it’s hard to choose, but I guess I pick, as Farce Number One, the inability of U.S. national intelligence to find Edward Snowden after he fled overseas and checked into a Hong Kong hotel. I’ll let you know if that changes.
I imagine readers have a clear picture of what’s going on with this NSA collection scandal, but let’s clarify one aspect of it. The phone data collection involves metadata only, at least as far as we have been told; it’s not about collecting the content of phone calls. The collection of data on emails and other web-brokered information is about content, as well as about metadata. NSA is collecting content from our online correspondence.
So it is inaccurate to say that NSA isn’t collecting content created by presumed-innocent citizens with First and Fourth Amendment rights. NSA is doing exactly that. This form of collection doesn’t – at least intentionally – target our content. But it gathers and preserves it. The reason for the difference between phone calls and online exchanges is, precisely, the difference between phone calls and online exchanges: the former involve audio signals that aren’t normally recorded and preserved, whereas the latter involve digitally-generated and always-recorded data. The nature of the medium makes it unnecessary to do anything extra – anything that would entail getting a warrant in a criminal procedure – to collect data that’s conveniently preserved online already.
Next, let’s clarify something the pundits have been broadly confused about. Edward Snowden, the 29-year-old high-school-dropout/IT contractor who revealed the NSA collection program to the public, did not disclose anything damaging to national security about “sources and methods.” He did commit a felony by making an unauthorized disclosure of classified information, and the federal government has a basis for prosecuting him. But it is hilarious to suggest that he provided information that terrorists and foreign governments were lacking, in their effort to really understand how the U.S. government is trying to track them.
Does anyone today not understand the methods by which a national government could track and analyze information on phone calls and emails? Regarding the latter, the average, moderately tech-savvy person is well aware that commercial data mining programs go after emails. They go after our web clicks. They are used to target us with tailored advertising. All the government has to do is pick a mining objective, buy a program, and acquire a “source.”
Acquiring a “source” is even easier to do, if you’re a government. The U.S. federal government asked Google, Microsoft, etc., for their internet subscribers’ data, and the ISP giants said “Yes.” That was it. Nothing intricate or technologically sensitive. Terrorists and foreign governments – not to mention readers of USA Today – know that China and Russia have been doing this for years. The foreign governments that aren’t doing it are holding the option in reserve for the day they might want to.
Regarding “source” acquisition, the same goes for the telecomm giants. The feds asked; the giants said “Yes.” What part of this process is secret-squirrel intel-trade magic? If you’ve had a phone bill in the last 60 years, you know the metadata on your phone calls is there for the taking; if it’s not in your statement every month, it’s available from the service provider. (A whole generation learned about the existence of this data from the TV series Law & Order, with its 1990s-era stock dialogue on “getting the LUDS” on a suspect’s phone.)
Terrorists have known this for years. It’s why they like to have lots of prepaid cell phones, bought with cash in different places, which they use only once and then discard.
Dianne Feinstein assures us that these data-mining efforts can be credited with preventing terror attacks, and I don’t think she would lie to us about that. A conclusion from this point is that there are – or at least, in recent years, have been – people with media-subscriber accounts in the United States who are involved in terrorism, or whose family members are. This would include people who aren’t subscribers, per se, but who reuse prepaid cell phones and internet aliases. Such people tend to be relatively stable, with jobs (or at least a relationship with SSI and TANF) and street addresses.
These people aren’t likely to be the “big fish.” The plotters of major terrorist attacks try to cover their trails better now. But the big fish’s networks of associates include relatively stable, normal-appearing people in America who keep subscriber accounts with wireless and internet providers.
This is worth remembering, and under different political conditions, it would be as clear to us that the terror-connected American-media subscribers have Arabic, or Central or South Asian names, as it is that Mafiosi have Italian names, or that the members of gangs wear special tattoos and flash gang signs at each other. The people in a particular ethnic, racial, or religious group are by no means all tarred with the same brush; of course, we must and do make distinctions between the radical or criminal and the great majority who are neither. But in no case, when looking for terrorism patterns, will it be fruitful to pore over the telecommunications of a black evangelical Christian from Hattiesburg, a Navajo business proprietor from Shiprock, a Hispanic dentist from San Jose, or an aging atheist professor from Happy Valley.
Nevertheless, it is these latter Americans who are finding their telecommunications pored over. For some perspective, consider that in the 1970s, Congressional discoveries about CIA excesses in collecting data on Americans led to severe restrictions being placed on the CIA, and the passage of the Foreign Intelligence Surveillance Act, or FISA – the father of today’s network of FISA provisions for managing intelligence collection. The purpose of Congress’s actions in the late 1970s was to fence off the American public from the forms of collection our national government uses against foreign targets. Foreign targets have no expectation of rights under the U.S. Constitution. American citizens do.
Today, the National Security Agency, which was chartered to collect on foreign targets, is collecting data on American citizens as if we were all foreign targets, with no expectation of constitutional protection. The concern that this would be too likely to happen was one of my chief beefs with the Patriot Act.
For some additional perspective, we can consider the early 1990s, when the Bush 41-era “war on drugs” encountered the issue of collecting communications that might involve U.S. citizens (or “U.S. persons,” which includes business and other corporate entities). The protocols for handling “war on drugs” communications in which U.S. persons were involved were much, much stricter than the “war on terror” collection protocols appear to be. The slippery slope seems now to be covered with mud and fallen rock behind us.
It is a legitimate question how we should handle collection methods as our technology evolves. I never defended – in fact, I opposed – the so-called practice of “warrantless wiretapping,” which we learned about during the Bush 43 administration (and which has continued under Obama). Although it wasn’t actually “warrantless,” the informal convention adopted by the Bush administration was too easy to abuse, and I was often a lonely voice among conservatives arguing against it.
But I did acknowledge, and indeed explained clearly, why our technology had changed to the point that observing the letter of FISA too often meant falling behind the pace of terrorist communications. My suggestion was to revise the law – rather than accepting an on-the-fly circumvention of it – so that respecting our Fourth Amendment rights would keep up, procedurally, with technology.
I suggest that what we require today is a full airing of technological capabilities versus national security needs and the people’s rights. There need not be a slide show on literal “sources and methods,” but we definitely require a reckoning on what is being or can be collected, and how such collection ought to relate to our protections under the Constitution. There has been too much of simply assuming this question away, and not enough of a basic, principled discussion about it.
I see two major hinges for the issues involved. One is whether government can be trusted with a mass of data on the people, for which it has no legitimate purpose. The other is whether there are alternatives to the data-mining program that would meet our national security needs.
As to the former, it seems farcical to suggest that government can be trusted with all this information about us. Government holds over us whatever it can find out about us. There was a time, as little as 100 years ago, when the U.S. federal government didn’t know what people’s individual incomes were. Through a constitutional process, Congress and the president decided that government needed to know our incomes in order to tax us. Just to tax us; nothing else.
But almost immediately, government began to have opinions about our incomes: to assert that some had too much income, and some too little, and then to calculate that each of us had enough to pay for an ever-growing list of schemes – Social Security, “employer-provided” health insurance, Medicare – to remake our economy and social lives. In the 1960s, Congress instituted a welfare state, effectively for the purpose of raising some incomes by lowering others.
In the last few years, Democrats in Congress have floated the idea of “nationalizing” citizens’ tax-advantaged retirement-savings accounts; that is, taking them away from the people who accumulated them, and replacing them with fixed-return accounts managed by the federal government. Today, Obamacare proposes to commit an alarmingly huge portion of a middle-class income — $20,000 a year for a family – to a “health insurance” mandate. These proposals would be unthinkable if the U.S. federal government did not perceive itself to be in charge of the levels of the people’s incomes. We got to this day from the starting line at which all government needed was a dollar figure so it could tax us.
Given the federal and state governments’ activism in every aspect of our lives, it is fully guaranteed that the U.S. government will be as active with our phone and online data as it has been with everything else about us. This one is simply a given: of course the federal government will seek to control, incentivize, and punish us using the data it collects on us.
The other hinge is the question whether we have alternatives to this data mining for national security purposes. This is a cost-benefit issue; it is not a ones-and-zeroes issue of national security on one side and a complete lack of it on the other. Of course we have alternative methods, such as profiling and regime-changing. No single method is foolproof by itself, as is obvious with the Boston Marathon bombing. The only method in this list that we were using prior to the bombing was the comprehensive data mining, and that, even combined with whatever else we were doing, didn’t prevent the attack. Profiling would actually have had a better chance of preventing it, considering Tamerlan Tsarnaev’s background and connections with Islamist radicals.
There was, of course, no one to regime-change, to discourage this attack. The cost of regime-changing foreign despots is very high; we don’t want to take it on lightly. But the cost of allowing virtually unfettered data mining on the mass of American citizens is at least as high, if not higher. The very character of our nation depends on government being in a correct relationship to the people, and with the data mining programs used by NSA, government is not in that relationship today. It sees us as an abstract data set, to be mined and sifted for potential intelligence – rather than as 314 million individual citizens with rights.
In other realms, like consumption, health, jobs, income, productivity, retirement, childbearing, and household formation, government already has an irresistible tendency to see us in the same light. We are not individuals with dignity and rights, but data sets to be analyzed and manipulated.
It’s one thing for businesses to study us in order to better target their products and advertising. Businesses can’t force us to do anything. The choice to engage in commerce with them remains with us. But government holds the armed power of the state over us. It cannot be trusted to have a general, warrantless, “intelligence” interest in our phone call patterns or our online correspondence.
If we terminated these NSA collection programs, might the consequence be a terror attack that isn’t prevented? Possibly. But we are already paying that price with our rejection of profiling, which could have prevented more than one of the terror attacks in our growing list. Major Nidal Hassan, like Tamerlan Tsarnaev, would have been an excellent subject for profiling. Not all would-be bombers or successful attackers exhibit such strong symptoms beforehand. But careful profiling is at all times likely to have a higher payoff in protecting the public than vacuuming in piles of irrelevant data on the phone calls of a Jewish IT executive in Denver or the emails of a Cuban-American restaurateur in Miami.
Whether or not you feel competent to judge the efficacy of different intelligence and law-enforcement methods, your opinion matters on whether the federal government should gather reams of data on your communications. (To clarify, it matters even if you disagree with me.) It was always going to be the case that each time Americans were asked to accept a loss of freedom, the reason for the mandate would be compelling, and the very definition of liberty would be at stake. There will never be easy-answer questions about how much liberty to give up for a promise of security.
But there is the lesson of history on this matter. No government has ever failed to use the power it had over its citizens. No government has ever collected information about the people and then failed to use it against the people. Those who have ceded liberty for security have in fact lost both. The horrors perpetrated by humans – e.g., terrorism – are not “patterns,” they are accountable moral decisions, and preventing them is not an abstract mechanical activity but a moral and spiritual one, with the blood and sweat of human will coursing through it.
It is a false implication, that we will be more secure if we allow the government of the United States to keep us under surveillance in the way the governments of Iran, Cuba, and China keep their people under surveillance. The truth is closer to the reverse. If we seek security, our priority should be to prevent any entity on earth from having too much power over us. History, if it tells us anything, tells us that.
J.E. Dyer’s articles have appeared at Hot Air, Commentary’s “contentions,” Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard online. She also writes for the new blog Liberty Unyielding.
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