NSA Official Positively Compares Metadata Searches To Stop And Frisk

from the an-apt-comparison,-but-hardly-in-the-way-he-means-it dept

Tue, Nov 5th 2013 11:50am — Tim Cushing

There's a huge disconnect between the mindset of the intelligence community and everyone else outside it. Considering the majority still lies with those on the outside, you'd think they'd make more of an effort to connect. But, as this statement, made to the PCLOB (Privacy and Civil Liberties Oversight Board), indicates the gap hasn't narrowed in the slightest.

Employees at the National Security Agency follow the same standards as controversial "stop and frisk" policies when accessing phone surveillance data, intelligence officials said Tuesday.

Though the agency collects data about all U.S. phone calls, NSA employees need to demonstrate “reasonable and articulable suspicion” when they want to access that phone call data.

"It’s effectively the same standard as stop and frisk,” NSA General Counsel Rajesh De said during a hearing held by the Privacy and Civil Liberties Oversight Board, which supervises anti-terrorism surveillance programs.

It simply cannot be stressed enough that you need to choose your words wisely when discussing programs that are already suspected of violating civil liberties. Comparing them to something just as controversial only calls the programs into further question, not to mention Rajesh De's judgement.

A board member called De out on this, pointing out the NYPD's program is hardly without its problems, seeing as it's currently the subject of multiple lawsuits including two high-profile cases in federal courts. Having been apprised of developments outside the intelligence bubble, the officials "amended their claim," so to speak.

The intelligence officials defended their version of the process, saying that searches of the phone call database are subject to more oversight than police officers who stop and frisk people on the street.

Well, one would hope so, considering the particular "cops on the street" Rajash De compared NSA analysts to have had very little oversight over their program, which simply requires an officer to fill out a small form and check some boxes ("furtive movement") in order to justify shoving someone up against the wall.

As it stands now (especially with the City's stay being granted), stop and frisk hardly even needs "reasonable suspicion." Supposedly the NSA does, but again, we're expected to take officials' word on this, and any references De (or anyone else) makes towards "oversight" should probably be ignored. "Oversight" is the ideal, not the reality. The same goes for the NYPD, which has been granted (like the NSA) an extremely long leash by indulgent overseers (Mayor Bloomberg/intelligence committees).

DNI counsel Robert Litt added that the "actual degree of intrusion" when the agency searches the (not officially a) collection is much less than that of a stop and frisk search. Well, I would hope so. For one thing, no one's pockets are being turned out or having their crotch region manhandled. If they were, there'd be a whole lot fewer unnoticed privacy violations, much to the chagrin of Mike Rogers.

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Filed Under: metadata, nsa, nsa surveillance, pclob, rajesh de, stop and frisk

22 Comments

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Anonymous Coward, 5 Nov 2013 @ 12:06pm

So they're searching for weapons?
Terry v Ohio (1968) did not authorize an exploratory rummaging through the pockets of anyone whom the police suspect.

Terry authorized a pat-down for weapons, on the basis that on the facts there, the lone officer reasonably suspected he was outnumbered by three armed criminals. Three armed criminals who might do him violence.
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John Fenderson (profile), 5 Nov 2013 @ 12:11pm

Employees at the National Security Agency follow the same standards as controversial "stop and frisk" policies when accessing phone surveillance data, intelligence officials said Tuesday.

So they're only spying on black people in sketchy neighborhoods, then?
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Anonymous Coward, 5 Nov 2013 @ 12:20pm

Oh I know what will really get the public! Let's compare one unconstitutional law with another, yeah that's the ticket!
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kenichi tanaka (profile), 5 Nov 2013 @ 12:25pm

Compares Metadata to Stop and Frisk? Does the NSA official realize that Stop and Frisk has been declared unconstitutional? I guess that means that metadata searches are also unconstitutional.

First time that the NSA has admitted that Metadata searches are unconstitutional.

Now, ain't that a wrinkle in the NSA's plans to expand the program?
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Anonymous Coward, 5 Nov 2013 @ 12:31pm

Re:
Stop and Frisk has been declared unconstitutional?

Newsflash: Second Circuit disagrees.

�Court Blocks Stop-and-Frisk Changes for New York Police�, by Joseph Goldstein, New York Times, October 31, 2013
A federal appeals court on Thursday halted a sweeping set of changes to the New York Police Department�s practice of stopping and frisking people on the street, and, in strikingly personal terms, criticized the trial judge�s conduct and removed her from the case.

�.�.�.�.
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John Fenderson (profile), 5 Nov 2013 @ 12:42pm

Re: Re:
Second Circuit disagrees

Not quite.

The appeals court did not revisit the actual decision, so we don't know if they disagree or not. They simply found that there was a question about the impartiality of the original judge. From the article you linked to:

The appeals court has not yet taken up whether Judge Scheindlin�s decision reached the correct constitutional conclusion regarding the police tactics.

�We intimate no view on the substance or merits of the pending appeals,� the two-page order stated.

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Anonymous Coward, 5 Nov 2013 @ 12:53pm

Re: Re: Re:
we don't know if they disagree or not.

OK. Maybe you're too dense to read between the lines.

The Second Circuit sua sponte tossed Judge Scheindlin. None of the parties asked for that. The Second Circuit just went out and did it, writing a gratuitous swipe at the judge.

Here's another federal judge's opinion on what the Second Circuit did. Judge Kopf (senior status, District of Nevada) calls it �a cheap shot�.

So maybe you yourself are just too dense to read between the lines.
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Michael, 5 Nov 2013 @ 1:05pm

Re: Re: Re: Re:
So maybe you yourself are just too dense to read between the lines

Ahh...name calling. Truly a sign of a great orator with a compelling argument.
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Mr. Applegate, 5 Nov 2013 @ 1:22pm

Re:
So they're only spying on black people in sketchy neighborhoods, then?
Actually, I believe: "So, they are only spying on black people that aren't in sketchy neighborhoods then?" would be the more accurate question.
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Brazenly Anonymous, 5 Nov 2013 @ 1:36pm

Moving Goalposts
Ooh, clever.

This appears to be an attempt to set up a straw-man by getting the opponents of NSA searches to focus on similarities between this and Stop & Frisk, thereby allowing an argument that the programs are better than Stop & Frisk to carry weight.
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Anonymous Coward, 5 Nov 2013 @ 2:39pm

Re: Moving Goalposts
I would like to call this fallacy...the Steubenville fallacy, where you intentionally compare two negatives so that you can say that one negative is objectively worse than another.
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kenichi tanaka (profile), 5 Nov 2013 @ 3:02pm

I find it blatantly absurd that the government, let alone, the NSA, would compare any program to "Stop and Frisk", which has been shown to racially profile Americans simply based on their race or skin color.

Does this mean that the NSA frequently 'targets' or 'racially profiles' Americans when they conduct their 'metadata searches'?
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Brazenly anonymous, 5 Nov 2013 @ 3:08pm

Re: Re: Moving Goalposts
Of course it is a fallacy. But it is a fallacy that a lot of people buy into all the time. We have to be careful not to play into it, which is the purpose of my post.

I like to analyze the strategy of my opponents. This makes it easier to counter them.
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John Fenderson (profile), 5 Nov 2013 @ 3:09pm

Re: Re: Re: Re:
So, I'm an idiot for understanding what the appeals court actually ruled, and you're smart for taking judge Kopf's self-admitted speculation as fact?

I think you understand everything backwards.
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Me, 5 Nov 2013 @ 3:16pm

Re: Re: Re: Re:
"So maybe you yourself are just too dense to read between the lines."
___________________________________

It's a good thing judicial holdings rely on inference and not language.

Oh wait, only a dense moron would keep digging that hole.
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Anonymous Coward, 5 Nov 2013 @ 3:37pm

Re: Re: Re: Re: Re:
So, I'm an idiot

Yes.

Here's a basic primer in reading a judicial opinion:
1) Start out by noting which court it is, and note the date of the opinion.

2) Note who the parties are, and if it's an appellate opinion (as it usually is), then note which party prevailed below.

3) Note the procedural posture of the case. Is it an interlocutory appeal, an appeal from a motion to dismiss, an appeal on summary judgement, an appeal after a jury trial?

4) Look at what the judges actually do. Do they uphold the lower decision, or do they reverse and remand? Look at what they order.

There is nothing in an appellate opinion more important than the action the judges take.

The rest of the opinion is, hopefully, the judges explaining the reasons they took that action. But you can't always take them at their word. When their words are at variance with what they did, then what they did controls.

Judges wind up saying all sorts of things. Some of it is just�well, the judge is just saying that.

You have to look at what the judges actually order.
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Anonymous Coward, 5 Nov 2013 @ 3:55pm

Re: Re: Re: Re: Re:
� judicial holdings�

Actions speak louder than words. That goes double when you're reading a court's opinion.

What the judges do �what the judges order� forms the kernel of the court's holding.

Sometimes that kernel is all there really is, and everything else is just dicta.
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Anonymous Coward, 5 Nov 2013 @ 4:48pm

Re: Re: Re: Re: Re: Re:
"and everything else is just dicta."

Yeah - you're some kinda dick-ta
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Rex Rollman (profile), 5 Nov 2013 @ 5:11pm

That's funny because I consider "stop and frisk" to be illegal.
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Ninja (profile), 6 Nov 2013 @ 2:12am

Re:
No, they are Mr Bloomberg's personal spying agency. Oh wait.
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Anonymous Coward, 6 Nov 2013 @ 7:16am

Let me translate:
"Metadata is like 'stop and frisk' because we don't need reasonable suspicion. Now searching that data would be like doing a cavity search, and of course we would have more oversight.
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Not an Electronic Rodent (profile), 6 Nov 2013 @ 8:50am

Re: Moving Goalposts
thereby allowing an argument that the programs are better than Stop & Frisk to carry weight.
If that's the goal you've gotta wonder about this particular method don't you?
Though the agency collects data about all U.S. phone calls, NSA employees need to demonstrate �reasonable and articulable suspicion� when they want to access that phone call data.
To me that instantly sets up the comparison as "this is way worse than stop and frisk", they already have the data to "frisk" so to be a valid comparison, you'd have to have constant knowledge of where everyone is and be able to frisk them any time you like.
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