NSA Defenders Insist Their Lawbreaking Should Be Ignored Because They 'Didn't Mean It'

from the let's-try-that-anywhere-else dept

Mon, Aug 19th 2013 7:25am — Mike Masnick

We got a hint of what NSA defenders would say to try to respond to the latest revelations of thousands of abuses per year by NSA agents, but late Friday (the best place to try to hide from the news cycle) we saw the official response plan roll out and, my goodness, is it ridiculous. The NSA held a conference call, in which it said, sure, sure, agents had abused the system thousands of times, but it shouldn't count, because they didn't mean to:

"These are not willful violations, they are not malicious, these are not people trying to break the law," John DeLong, NSA director of compliance, told reporters.

Except... the NSA also admitted separately:

Mr. DeLong reported, however, "a couple" of willful violations in the past decade. He didn't provide details.

Wait, hadn't Keith Alexander just told us that there had never been a willful violation?

Meanwhile, Senator Feinstein is trying a similar "but they didn't mean it" argument with her statement:

The majority of these ‘compliance incidents’ are, therefore, unintentional and do not involve any inappropriate surveillance of Americans.

As I have said previously, the committee has never identified an instance in which the NSA has intentionally abused its authority to conduct surveillance for inappropriate purposes.

Two points in response to this. First, John DeLong admitted during the call that there have been willful violations. Feinstein -- the person in charge of oversight -- is claiming that she's never heard of an instance of intentional abuse. Either she's really, really, really bad at her job and should be removed from the Intelligence Committee, or she's lying (and should be removed from the Intelligence Committee).

Second, the next time someone is accused of a crime, can they just say they didn't intend to violate the law and get away with it? Because that seems to be what the NSA and Feinstein are saying here. Good news for Ed Snowden and Bradley Manning, right? Both of them have made it abundantly clear that they didn't "intend" any harm at all. In fact, they "intended" to help America. So, based on Feinstein and the NSA's reasoning, they should be in the clear, right?

The other talking point, which we'd briefly discussed last week is this idea that because these abuses are such a small part of the NSA's overall surveillance, this isn't a problem. The NSA's DeLong tried this line of reasoning as well:

The official, John DeLong, the N.S.A. director of compliance, said that the number of mistakes by the agency was extremely low compared with its overall activities. The report showed about 100 errors by analysts in making queries of databases of already-collected communications data; by comparison, he said, the agency performs about 20 million such queries each month.

Other defenders of stamping out the 4th Amendment, like commentator David Frum, bizarrely argued that as long as the NSA does more spying, that's actually better because the ratio of abuse to spying is so low. Uh, that's not how it works.

Again, going back to the Snowden and Manning examples, for the vast, vast majority of their lives, neither of them leaked a damn thing. It was really just one day in their life that they leaked something. So, according to the reasoning of the NSA and Frum, they couldn't have broken the law, since it was such a tiny, tiny part of their lives, right?

Does anyone actually think these arguments make sense? Systematic abuses of the system are not okay just because they're not "intentional," and they're not okay just because they're a small percentage of all the spying the NSA does. This is still about the NSA breaking the law, and then failing to have any real oversight concerning its activities (not to mention lying about these abuses repeatedly).

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Filed Under: dianne feinstein, intention, john delong, keith alexander, nsa, nsa surveillance

54 Comments

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Josh in CharlotteNC (profile), 19 Aug 2013 @ 6:44am

what?
"the agency performs about 20 million such queries each month."

20... million... Wait. What?

Somehow this is supposed to make me feel better? This database is full of communication information of which >99% of is from perfectly innocent American citizens and foreigners who are absolutely no threat to the US. And yet that database is being queried 20 million times a month?

In what reality does this make even the tiniest bit of sense?
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Josh in CharlotteNC (profile), 19 Aug 2013 @ 7:02am

Re: what?
I'm still trying to get my head around this number.

Mathematically, even if you have thousands of analysts performing queries nonstop, this number is unlikely.

So, either there's tens or hundreds of thousands of analysts who have access to this data, or most of those queries are automated.

If that many people have access to it, then the low number of abuses is completely absurd and doesn't pass the laugh test. If those queries are automated, then they are extremely inefficient, repetitive, and bloated that the output has got to be utterly useless and full of false positives and probably letting all those important needles slip through.

I suppose it's also possible that the NSA has also redefined "query" to mean something that it doesn't in the normal use of the word among people who work with databases. I don't claim to be a DBA, but I did get stuck with maintaining a database with 150k records for a few months, and even I was only doing a dozen queries a day on it.
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Anonymous Coward, 19 Aug 2013 @ 7:38am

We already know they can lie all they want without any consequences, so why should they even care about getting their story straight?
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Zakida Paul (profile), 19 Aug 2013 @ 7:39am

Didn't mean to my arse
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NSA, 19 Aug 2013 @ 7:48am

Please stop picking holes in our arguments!
Its really annoying as we then have to think of something else to say when we could be making you safer by finding out more stuff about you.
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Anonymous Coward, 19 Aug 2013 @ 7:49am

the number of mistakes by the agency was extremely low compared with its overall activities

As long as the ratio of oversight to activities remains what it is, the number of 'mistakes' caught can only be extremely low.
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Adam (profile), 19 Aug 2013 @ 7:52am

The NSA Defence
Anytime somebody commits a crime now but didn't mean it they should be allowed to use "The NSA Defence".

You weren't trying to hit the other car in the parking garage. That's OK, use the NSA Defence.

You didn't mean to start a forest fire by not putting out your campfire. That's OK, use the NSA Defence.

If the government can use it, why can't everyone else?
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Anonymous Coward, 19 Aug 2013 @ 7:53am

Ignorance of the law -- and lack of intent -- is no excuse
The funny thing about intent is you don't have to have intent to violate federal law ("overcriminalized" covers this in depth) -- intent must be explicitly written into the law to be a defense. These laws don't require intent -- and then they've freely confessed to violating them -- and then they've additionally confessed to participating in a conspiracy to violate them, and a conspiracy to cover up violations of them. It's hard to see how this isn't RICO-worthy.
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Anonymous Coward, 19 Aug 2013 @ 7:57am

This is 645k queries a day. That's insane. It seems like they'd have to share the database with the world to achieve that level of activity.
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Brandon, 19 Aug 2013 @ 8:00am

Re:
NSA: "We're not certain why we're doing 645k queries a day. We're currently trying to track down this 'sa' guy to figure out what he's querying for."
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That Anonymous Coward (profile), 19 Aug 2013 @ 8:00am

I didn't mean to shoot that man.
I didn't mean to buy those drugs.
I didn't mean to steal that car.

Our "safety" depends on people unable to come up with answers better than a 7 yr old. We are so fucked.
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Internet Zen Master (profile), 19 Aug 2013 @ 8:02am

Re: Re: what?
But unless I'm wrong, doesn't the NSA collect 29.21 petabytes of data per day (or 1.6% of the entire internet)? So making 20 million queries to such a large amount of data kinda makes sense. That would be a lot data to sift through, theoretically speaking.
And when you consider that a lot of the NSA's workers might be compartmentalized into small individual groups, it could be a massive case of everyone "on the ground" not knowing that someone else has queried the same thing they are, and the guys who are supposed to be in charge of oversight are the only ones who actually know how much of a mess this actually is.

But still, "we didn't mean it"? Are you kidding me? That doesn't fly with the kid who accidentally breaks the window with a baseball, and it sure doesn't fly with a government organization full of supposedly competent adults.

Fucking hell NSA. You're worse at damage control than Microsoft.
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Anonymous Coward, 19 Aug 2013 @ 8:05am

Your Honour,
I didn't bumped into my ex-wife's car willfully. Therefore I shouldn't be punished or have to pay any compensation. And the bill for the repair should be paid by my ex-wife anyway, since I work for the government.
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Anonymous Anonymous Coward, 19 Aug 2013 @ 8:09am

Zero, that's Zero Tolerance
I guess 'zero tolerance' has different meanings depending upon which side of the desk you sit on!
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arkiel (profile), 19 Aug 2013 @ 8:10am

If accidental actions violate the Constitution, that isn't evidence that the system which enabled those violations should be retained; it is an argument that the system cannot be used without there being Constitutional violations.

The NSA had a chance to make this work and proved unequal to the task. It shouldn't get a do-over because its sins have been brought to light.
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Anonymous Coward, 19 Aug 2013 @ 8:15am

Had the American people faith and trust in their government that idea that it wasn't meant could have had forgiveness in it. There is no chance in hell I believe anything coming from people supporting the spying by the government on it's people. I've heard nothing but lies. I know I can believe that.

It's time for a special investigator to go through and straighten out stuff. Nothing short of that will work. And the special investigator needs have no connections at all to those presently working for the NSA.
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JWW (profile), 19 Aug 2013 @ 8:18am

Re: Ignorance of the law -- and lack of intent -- is no excuse
I love this stance by our government. You are not allowed to be ignorant of the law and yet it is impossible to fully know the law....

Plus, its even worse when you "have to pass the law to find out whats in it".
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Anonymous Coward, 19 Aug 2013 @ 8:18am

"the agency performs about 20 million such queries each month."

Even assuming that they only look at ONE record per query, that's an awful lot of records they actually put eyes on. Do terrorists communicate electronically 20 million times per month?

"The report showed about 100 errors by analysts in making queries of databases of already-collected communications data"

But with 20 million queries per month, exactly how closely do they look at individual ones to determine that they are NOT abusive? You'd practically need a separate supervisor for every employee.
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Dan (profile), 19 Aug 2013 @ 8:21am

Never told ???
"Feinstein -- the person in charge of oversight -- is claiming that she's never heard of an instance of intentional abuse. Either she's really, really, really bad at her job and should be removed from the Intelligence Committee, or she's lying (and should be removed from the Intelligence Committee). "

Not arguing that Feinstein isn't bad at her job but...

Or option three, she was never told. Do you honestly believe that people who spy for a living are going to out one of their own to Congress?! Even cops aren't that stupid.
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Anonymous Coward, 19 Aug 2013 @ 8:26am

Re: Re:
I think the NSA knows enough not to use the SA account for queries.

On the other hand, if they ARE that incompetent... and they're spying on everything, including this...

a'); DROP DATABASE; --

There, spying neutralized.
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Lurker Keith, 19 Aug 2013 @ 8:31am

the let's-try-that-anywhere-else dept
Let me see how many I can come up with...

Uh, so... casual pirates should be ignored because they often aren't aware the copying is illegal... & they aren't causing any real harm, on their own, to the rights holders anyway.

ALL accidents that lead to death or serious injury can be ignored. They're all unintentional (definition of accident), after all.

Involuntary manslaughter, for which there is a specific law, apparently should also slide.

Most murderers can be ignored because they kill so rarely.

Insider Trading probably would count too, since doing too many trades gets you caught. Mathematically, they do a statistically small number. Oh, wait, they already ignore this.

Really, wouldn't the first few thousand offenses of any Law fall into this thinking.
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open2discussion (profile), 19 Aug 2013 @ 8:37am

Sorry officer - I didn't mean to
I didn't mean to break the speed-limit, plus I accidentally closed my eyes (blinked) and missed the "Speed Limit 35" sign while this car going 110 mph back there. That means I shouldn't be responsible for the ticket or reckless driving charges because I was paying attention to the road and not the car's speedometer.

Why didn't my car know the speed limit and make sure I didn't exceed it? It was the one going that fast not me, I was just behind the steering wheel. I'm a race-car driver by trade, so I was just doing my job.
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The Real Michael, 19 Aug 2013 @ 8:50am

Re: what?
The more pertinent question: just what exactly are they looking for? Can't be terrorists because they haven't found any.

Feinstein said, "The majority of these �compliance incidents� are, therefore, unintentional and do not involve any inappropriate surveillance of Americans."

Oh really? Harvesting data en masse on all Americans' *private* communications is considered "appropriate surveillance" but those "compliance incidents" isn't? Could she explain, if looking through our data is unintentional then why bother collecting it in the first place?

One big fat lie after another.
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Engineer_in_IN, 19 Aug 2013 @ 8:52am

The magnitude of ridiculousness is proportional to the amount of times people defend it.
The amount of ridiculousness in their "defenses" (can they even be called such anymore?) is not only pathetic, but an insult to the American people. I won't deny that many (majority?) people in this country have probably become complacent and resigned to accept their government approved information pellet fed to them by the mass media, but these are just borderline saying "We think you're retarded, America, and you'll forget and stop caring about this whole thing by the time the next American Idol/Survivor/Kardashian is talked about".

As a side note: Mike M., I appreciate your time and diligence looking into and reporting these topics in a way that an ignoramus like myself can understand and get involved in. I basically browse Techdirt at least 3 times a day now.
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Anonymous Coward, 19 Aug 2013 @ 8:57am

NSA Defenders Insist Their Lawbreaking Should Be Ignored Because They 'Didn't Mean It'

Aaron Swartz Defenders Insist His Lawbreaking Should Be Ignored Because He 'Didn't Mean It'
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That Anonymous Coward (profile), 19 Aug 2013 @ 8:59am

Re:
Really... I think more so we focused on how a victimless crime allowed the Government to keep piling on charges and abusing the laws they had.

So it really is just like the NSA.
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sorrykb (profile), 19 Aug 2013 @ 9:00am

Re: Your Honour,
I didn't bumped into my ex-wife's car willfully. Therefore I shouldn't be punished or have to pay any compensation.

And besides, considering the hundreds of thousands of times you DIDN'T bump into your ex-wife's car, this one instance is totally insignificant.
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sorrykb (profile), 19 Aug 2013 @ 9:02am

Abuses
They still don't get it. It's not about the thousands of times they broke their own rules.

The program itself -- its very existence -- is an abuse.
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Anonymous Coward, 19 Aug 2013 @ 9:11am

"I totally didn't mean to 'accidentally' shot my wife I'm getting a divorce with officer! I just felt like firing some bullets in the kitchen while she was making dinner and she got in the bullets way. There's no need to punish me because I 'didn't mean' to shoot and kill her"
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Mike Masnick (profile), 19 Aug 2013 @ 9:40am

Re:
Aaron Swartz Defenders Insist His Lawbreaking Should Be Ignored Because He 'Didn't Mean It'

-- said by no one ever.
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noyards, 19 Aug 2013 @ 9:43am

Low oversight equals low number of violations
Didn't Snowden already leak that the auditing, as poor as it is, only looks at a small percentage of the queries?

So a small percentage of queries turns up thousands of violations, not sure how that would automatically mean this was a 'good indication' of oversight.

if they audit say 1% of the queries every month (that's 20,000 queries) and they find a reported 7 or 8 violations per day, then one must assume they only find 1% of the violations .. so there should be logically 700 or 800 violations per day, should there not?
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arkiel (profile), 19 Aug 2013 @ 9:44am

Re: the let's-try-that-anywhere-else dept
Except none of those things implicate the Constitution. NSA dun broke the social contract.
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Anonymous Coward, 19 Aug 2013 @ 9:46am

"I didn't mean to rape that woman, she was drunk and the door was open."

Same kind of thing, and that would get me 10-15 years.
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DannyB (profile), 19 Aug 2013 @ 9:50am

Maybe the terrorists didn't mean it either?
Can we please get the "Didn't mean it" defense codified into law as quickly as possible?

Maybe the "Didn't mean it" defense works both ways? Maybe it works for the terrorists too?

Oh, and Snowden and Manning didn't mean it either.

"Didn't mean it" could be an affirmative shield against the DMCA. Also as an affirmative defense against any claims of copyright infringement.

Oh, wait. Nevermind. I didn't mean it. Or maybe I did. Depending on whether I meant it or not.
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Wally (profile), 19 Aug 2013 @ 9:54am

The NSA contributed that specific collection to the wrong phone area code being used. The national area code 202 is Washington DC, and International Area code 02 is Egypt. The problem with that defense is that section 215 was supposed to be a sunset clause full of public debate...which of course was never publicly debated by the Obama Administration for renewal in 2009, 2010, and 2012....in stead, more civil rights violating policies were violated.
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g, 19 Aug 2013 @ 10:07am

Makes sense
Dick Cheney didn't mean to shoot a guy in the face with a shotgun and that's why he didn't face charges. Makes perfect sense.
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ShellMG (profile), 19 Aug 2013 @ 10:21am

Next
What's taking the feds so long to play the "We meant well!" card? It works so well in other departments, like funding SNAP, TARP, ACA,etc.

"We Meant Well" absolves them of responsibility and blame because nobody ever asks, "ok, how do we FIX it" and checks to see if it ever happens.
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Brock Phillimore (profile), 19 Aug 2013 @ 10:27am

"We judge others by their actions and ourselves by our intent."
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Anonymous Coward, 19 Aug 2013 @ 10:37am

Re:
Your point being we should bully the NSA into committing suicide I guess?
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Nastybutler77 (profile), 19 Aug 2013 @ 10:37am

What I haven't seen pointed out so far is the fact that the NSA defenders keep painting themselves into a smaller and smaller corner as their lies keep getting exposed.

First it was, "We don't keep any info on Americans." Then proof of that lie surfaces. Then it's "We don't intentionally keep any info on Americans." More proof that they're lying comes out, so then it's "But we don't abuse the info we keep on Americans." Now evidence of abuse shows up, so now it's, "It's 'inadvertant' and 'accidental' abuse, not malicious."

So how are we supposed to believe anything they say? And who want's to bet that there's no evidence of intentional and malicious abuse about to surface? I wouldn't take that bet no matter what odds I'm offered.
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Nastybutler77 (profile), 19 Aug 2013 @ 10:43am

Re: Ignorance of the law -- and lack of intent -- is no excuse
But who's going to prosecute them? The DOJ? Oh, wait... they're part of the DOJ.
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hjweth (profile), 19 Aug 2013 @ 10:45am

Didn't mean it
I, for one, am comforted by this revelation that the security of my nation rests in the hands of the juveniles living in my house.
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Lurker Keith, 19 Aug 2013 @ 10:47am

Re: Re: the let's-try-that-anywhere-else dept
Part of why I didn't list any Constitutional violations was because those tend to be willful violations. Coming up w/ one that is plausibly accidental would've taken me too long. They also tend to occur in groups.

Also, I considered mentioning Obama's violations of the Constitution, but he appears to have committed too many to qualify.

Granted, I could've made a similar joke like I did w/ insider trading, but couldn't think of anything.
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Anonymous Coward, 19 Aug 2013 @ 11:26am

Re: Re: Re:
I see what you did there. It'd be hilarious if it worked.
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Anonymous Coward, 19 Aug 2013 @ 11:28am

Re:
Aaron Swartz downloaded freely available documents. The NSA downloaded EVERYTHING everywhere.
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GoldHoarder (profile), 19 Aug 2013 @ 11:34am

"As I have said previously, the committee has never identified an instance in which the NSA has intentionally abused its authority to conduct surveillance for inappropriate purposes."

Isn't this what Barret Brown was doing before the feds jailed his mother and then jailed him for threatening the FBI agent that jailed his mother (among other dubious charges)? Digging through the Stratfor email leaks and cataloging them to put together a story of private intelligence companies, corporations, and government agencies spying and running counter intelligence operations against protestors and activists running campaigns against their interests? Isn't that what Michael Hastings was looking into when his vehicle blew up? How the hell did Diane Feinstein amass a wealth of $100 million(not including her investment banker husband's assets)?

In 1980, Feinstein married Richard C. Blum, an investment banker. In 2003, Feinstein was ranked the fifth-wealthiest senator, with an estimated net worth of $26 million.[10] By 2005 her net worth had increased to between $43 million and $99 million.[11] Her 347-page financial-disclosure statement[12] � characterized by the San Francisco Chronicle as "nearly the size of a phone book" � draws clear lines between her assets and those of her husband, with many of her assets in blind trusts.[13]
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John Fenderson (profile), 19 Aug 2013 @ 11:54am

Re: Re: Ignorance of the law -- and lack of intent -- is no excuse
The NSA is not part of the DOJ. They're part of the DoD.
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Hephaestus (profile), 19 Aug 2013 @ 12:21pm

Re: The NSA Defence
None of those examples does the concept justice.

Yes your honor, I understand that firing a 30,000 rounds from a minigun in the air in the suburbs is a bad thing. I only killed 238 people it was unintentional ...
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Josh in CharlotteNC (profile), 19 Aug 2013 @ 1:44pm

Re: Re: The NSA Defence
But if you got 1 bad guy with those bullets, that makes it worthwhile, right?
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Anonymous Coward, 19 Aug 2013 @ 1:44pm

What an unconstitutional, and therefor illegal, mess.
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Anonymous Coward, 19 Aug 2013 @ 2:02pm

"The majority of these �compliance incidents� are, therefore, unintentional and do not involve any inappropriate surveillance of Americans."

So just because it wasn't intentional that somehow stops it from being inappropriate? That makes zero sense.
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killuminati, 19 Aug 2013 @ 6:55pm

NSA needs to be shutdown.
I am mad as hell and I am not going to take it anymore!
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Postulator (profile), 20 Aug 2013 @ 2:01am

So we've moved on from "there are no mistakes" to "we didn't mean it"? Next we'll have the "we have instituted new training" - along the lines of "the whippings will continue until morale improves".
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John85851 (profile), 20 Aug 2013 @ 3:38pm

I think "1984" is coming 30 years later.
First we had big-brother surveillance and now we have double-speak:
The government says: We didn't mean to break the law, so it's okay. But if you didn't mean to break the law, you still go to jail.

The government says: If you don't have anything to hide, then you won't mind if we search your e-mail and phone and stop & frisk you on the street. But you can't search our files because "Terrorism. National security. That's why".
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