Stewart Baker Deploys Shakiest Analogy Yet To Defend The NSA's Collection And Storage Of Non-Targeted Communications

Say That Again

from the so-bad-I-think-it-gave-me-cancer dept

Tue, Jul 8th 2014 3:34am — Tim Cushing

Stewart Baker, once again defending the poor, downtrodden NSA from the latest leak, has given us reason to add another post to the long list of "Stuff Stewart Would Like Google To Forget."

Baker addresses the latest leak -- the one published by the Washington Post that shows the NSA is harvesting communications from non-targets at a 9-to-1 ratio to actual targets. According to Baker, this is all no big deal because any ~~fishing expedition~~ targeted NSA collection is going to necessarily collect tons of irrelevant information.

The story* is built around the implied claim that 90% of NSA intercept data is about innocent people. I think the statistic is a phony. Especially in an article that later holds up US law enforcement practice as a superior model.

*I've add a link to the actual story Baker's complaining about because he clearly can't be arsed. Apparently, this is how certain bloggers subtweet.

In his explanation of how Sturgeon's Law relates to the NSA's national security aims, Baker gives the example of an unnamed law enforcement agency poking into his email account during an investigation.

Suppose I become the target of a government investigation. The government gets a warrant [ed. note: lol] and seizes a year’s worth of my email. Looking at my email patterns, that’s about 3500 messages. About twenty percent – say 750 –are one-off messages that I can handle with a short reply (or by ignoring the message). Either way, I’ll never hear from that person again. And maybe a quarter are from about 50 people I hear from at least once a week. The remainder are a mix — people I trade emails with for a while and then stop, or infrequent correspondents that can show up any time. Conservatively, let’s say that about 200 people are responsible for the portion of my annual correspondence that falls into that category. In sum, the total number of correspondents in my stored email is 750+200+50 = 1000. So the criminal investigators who seized and stored my messages from me, their investigative target, and 1000 people who aren’t targets.

So, in this example 99.9% of everything was irrelevant, but the agency doesn't know that until it's looked through all of it. Fair enough. But what does law enforcement do with the irrelevant information? (Don't answer that.) In a perfect world, the government/law enforcement agency disposes of the irrelevant data. That's what the laws governing search warrants and the minimization provisions governing the NSA's collections direct these agencies to do. But what does the NSA actually do with this 90% irrelevant information?

Back to Gellman's article:

Many other files, described as useless by the analysts but nonetheless retained, have a startlingly intimate, even voyeuristic quality. They tell stories of love and heartbreak, illicit sexual liaisons, mental-health crises, political and religious conversions, financial anxieties and disappointed hopes. The daily lives of more than 10,000 account holders who were not targeted are catalogued and recorded nevertheless.

[...]

The NSA treats all content intercepted incidentally from third parties as permissible to retain, store, search and distribute to its government customers. Raj De, the agency’s general counsel, has testified that the NSA does not generally attempt to remove irrelevant personal content, because it is difficult for one analyst to know what might become relevant to another.

Even the "searching my email" analogy doesn't hold up. The NSA searches a ton of proverbial email inboxes -- without a warrant -- simultaneously.

If a target entered an online chat room, the NSA collected the words and identities of every person who posted there, regardless of subject, as well as every person who simply “lurked,” reading passively what other people wrote.

“1 target, 38 others on there,” one analyst wrote. She collected data on them all.

In other cases, the NSA designated as its target the Internet protocol, or IP, address of a computer server used by hundreds of people.

And, unlike the targeted search Baker alludes to, nothing is regarded as irrelevant because the agency can't even determine what might or might not be worth keeping. In a targeted, warranted search, law enforcement generally has an idea of what it's looking for. With the NSA, it's "collect it all" because something might prove to be relevant later and besides, look at our shiny new storage space!

The NSA's deliberate collection of non-targeted communications is more analogous to law enforcement grabbing Baker's friends' and family's email as well --- even though they're not listed on the warrant -- simply because these all intersect with his account at some point -- and then holding onto it for x number of years simply because one analyst says it might be relevant to the investigation at some undetermined point.

The government can actually get in trouble for doing exactly the thing Baker claims is no big deal (and built on "phony statistics"). Just last month, the Second Circuit Court ruled that the feds held onto data unrelated to their stated investigation for too long, violating the plaintiff's Fourth Amendment rights. When the NSA does this to American citizens not currently targeted by counterterrorism investigations, it's doing the same thing. Only in the NSA's case, it does this on a massive scale, unimpeded by the limitations of specific warrants. One order nets the NSA nearly 90,000 targets and, apparently, the communications of nearly 800,000 others, if the ratio holds.

Baker's analogy doesn't stand up to the slightest scrutiny, and he willfully ignores the NSA's long-term storage of irrelevant communications to make his point. He claims Barton Gellman's being dishonest, but who's really applying the most spin here?

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Filed Under: communications, nsa, privacy, section 702, stewart baker, surveillance, targets

31 Comments

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silverscarcat (profile), 8 Jul 2014 @ 1:39am

I think...
That the NSA has a problem.

Not the obvious one, but rather, an addiction problem.

Once they get one hit of data, they have to have more, and more, and more.

Now they're trying to get it all, and wondering why people are looking at them in disgust as they run around bloated, naked and trying to get the last bit that exists.

They need an intervention, but sadly, every time someone tries to intervene to save them, they roll over and try to squish the person.
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Whatever (profile), 8 Jul 2014 @ 3:43am

In a perfect world, the government/law enforcement agency disposes of the irrelevant data.

In a perfect world, it would be easy to tell what is and what is not irrelevant. However, in the real world, it's not that simple. As an example, to avoid detection, it would be quite easy to use disposable email accounts to send what appears to be spam messages, but that actually convey a real message. It may not be obvious to start with, but could be more obvious later.

It's the very basics of police work, really. The small things that you notice but do not appear relevant at the moment may in fact be keys to resolving the crime later. It all depends on how you look at it.

You need to give Stewart credit on this one, because 90% of anyone's email is generally trivial and unimportant. Trying to prove anything on the basis of relevancy based on a raw sample just doesn't work out.
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Jay (profile), 8 Jul 2014 @ 4:09am

Supposed?
Baker gives the example of an unnamed law enforcement agency poking into his email account during an investigation.

Except this already happened...

They didn't need a warrant here

or in reading emails

Or for David Petraus

So just starting off, the FBI has been snooping.

The rest in Gellman's article is indeed noteworthy, but we've already seen the result. So why should the government be allowed to survey the public without its consent?

That's all that matters. This Weapon of Mass Distraction is not answering the question and it's atrocious for actual intelligent discourse.

So let's repeat the question one more time for the NSA...

Why are you spying on Americans without their consent?

Yes, I already know the answer to that, but it should be repeated until they answer the question laid out, not the one they want. This is a public relations nightmare, as it should be. The propaganda doesn't work. The truth will. Anything less is insulting.
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David, 8 Jul 2014 @ 4:40am

Re:
In the real world, anything might be relevant at some point of time. That can not be an excuse to store everything on everyone forever.

The Constitution defines expectations of privacy. Privacy may only be infringed upon when reasonable cause exists, as documented with a judicial warrant and subject to oversight.

I don't have police passing in and out of my house continually and rifling through my drawers just because I might have something relevant in there.

But in essence, that is what the NSA is doing with everybody's digital assets.

Yes, not doing so might overlook some evidence at some point of time. The consequential cost on society is much smaller than the price that is paid by collecting all that information: any collection of such information is a likely cause of future abuse, both by government agencies as well as by others getting hold of those collections.

"Could be relevant at some point of time" is no excuse, just like "could become criminal at some point of time" is no excuse for locking people away or killing them.

Yes, I know that the U.S. loves killing "potential terrorists" and their relatives with drones without due process, in order to create the incentives for the occasional genuine terrorist to pop up for fueling their Orwellian hate, surveillance and murder machinery, but it is still not right, and it is still not constitutional.
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Anonymous Coward, 8 Jul 2014 @ 4:51am

Re:
Which is worse, a society in which a few criminals escape justice, or a society in which a few can destroy the life of anybody that offends them because they can look at every detail of every bodies life, but are themselves protected by money and influence?
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Anonymous Coward, 8 Jul 2014 @ 4:52am

The government treats their storage space like they treat their budgets. Use it all or they won't get as much next year.
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mcinsand, 8 Jul 2014 @ 4:57am

+1 to any article even obliquely referencing Sturgeon
However, if Sturgeon could have lived to see the NSA, he would have realized how high general quality standards are in comparison.
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Anonymous Coward, 8 Jul 2014 @ 5:08am

"Stewart Baker Deploys..."
Must be a cross-the-pond, cultural thing - I usually choose the verb "defecates" for this.
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Anonymous Coward, 8 Jul 2014 @ 5:24am

Re:
"In a perfect world"

... there would be no crime and no need for law enforcement.

How can this be so alien you did not think of it yourself? Or perhaps this is not your "perfect world" ?
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Anonymous Coward, 8 Jul 2014 @ 5:26am

I can't imagine an average crime having a 1000 people involved in email searches. That's what puts all this so out of whack. We have a national agency, one among many evidently doing all this collecting. No need for it, can't be all these people terrorists unless the that is one of those redefined words.

But you know, in talking about these amounts of people, there is one thing they've dropped and conveniently failed to mention. The example here was 1 target in a chat room with 38 others. Now I seem to recall Obama was going to have the NSA reduce the number of hops by one. Even with just two hops, this is a jaw dropper in the amount of unnecessary and unrelated people who have had their privacy invaded in the process. Now multiply this by one year and 90,000 hits sounds really, really, shy by a multiple figure if not more on the amount of unrelated to terrorism people that have been spied on.

It's another number snow job.
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beech, 8 Jul 2014 @ 5:29am

The biggest difference is that in his example, 100% of his emails AT LEAST have a target (him) in common. So they are infinitely more likely to be relevant to the investigation than emails grabbed from 1000000 other people at random, which is what the NSA is actually doing.
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Anonymous Coward, 8 Jul 2014 @ 6:01am

Storing data on people without acquiring a warrant listing the particular person, place, and things to be searched and seized, is illegal.

It doesn't matter how you try to spin it, tap dance around it, or attempt to interpret it. It also doesn't matter what common laws, state laws, federal laws, or executive orders are passed stating the opposite.

They're all null and void, because Constitutional Law is the highest law in this country. It trumps all other laws, executive orders and memos.

The 4th Amendment clearly states what needs to happen before a search and seizure takes place.

- Probable cause must be established
- A particular person or place must be listed
- Specific items or persons to be searched and/or seized must be listed in the warrant

General warrants are not allowed. Warrantless searches and seizures are not allowed. Any violation of these principles, no matter what the reason or excuse, is illegal.

Do you think a warrant listing a post office as the place to be searched, and all the letters inside that post office as the items to be seized. Would fly in front of a judge? I sure as hell hope not, because that's the very definition of a general warrant. Which is illegal.

Now replace "post office" with "web server" or "router" or "phone company" or "internet backbone". The same principals apply for digital locations. Just because something's on the internet, doesn't mean the 4th amendment stops applying. It still applies, and failure to meet all the requirements is a violation of the law.
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uRspqF7L (profile), 8 Jul 2014 @ 6:47am

groan
i am hesitant to weigh in with all the Constitutional lawyers here, but Baker is, of course, actually right, and doesn't go far enough, in fact.

First, all of you Constitutional lawyers seem to be forgetting three facts that would actually come up were a case based on this to go before the courts:
a) the NSA is military, not civilian law enforcment, and the 4th amendment does not even directly apply to it--read that again, it's true, and you can be it will come up when/if something like this ever gets to SCOTUS; furtehr, it is pursuing, under Congressional/Presidential order--that is, order, meaning it must follow, an enemy who has struck inside the US using US citizens. That creates a highly unusual situation, but not a crisis. A crucial detail: military actions don't require warrants.
b) Gellman's story actually documents the enormous amount of minimization NSA does to prevent citizens from being analyzed
c) The distinction between collection and analysis you gloss over time and time again is completely vital, because no, it is not that terrible to privacy if NSA is holding on its servers but not looking at the same goddamn information that Google and Facebook and Twitter are retaining on their servers AND LOOKING AT IT.

Anonymous Coward writes:
Storing data on people without acquiring a warrant listing the particular person, place, and things to be searched and seized, is illegal.

Please cite for me which law or even amendment in the Bill of Rights is being violated when the military does this. You might want to check through Supreme Court jurisprudence while you're at it--essentially the entire Bill of Rights does not apply to duly-constituted military bodies and their actions. Ever heard of the Army or Navy getting a warrant to go after somebody, including US citizens who go over to the enemy side? Guess why they don't have to. Just guess.
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uRspqF7L (profile), 8 Jul 2014 @ 6:52am

One of the truly fascinating pieces about this is that we do have two other periods of time when we had military actions on domestic soil: during the early days of the republic through the War of 1812, and during the Civil War. All of you experts might enjoy reading through the history of military actions and intelligence operations during those two critical times in our history--because you may be shocked to find out that the very founding figures you often cite were MUCH less concerned about the Bill of Rights some of them WROTE being violated by much more directly invasive techniques and actions, covered by far less oversight and minimization, than we have today.

War sucks. I don't even agree that we should be at war right now. But you can't object to the techniques used by the military on the grounds that they don't conform to civilian law. They can't, they never have, they shouldn't, and to object to them is to say that the country of which you are a citizen should not have a military, which is a pretty freaking bad idea.
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Anonymous Coward, 8 Jul 2014 @ 7:05am

Re: groan
The distinction between collection and analysis you gloss over time and time again is completely vital, because no, it is not that terrible to privacy if NSA is holding on its servers but not looking at the same goddamn information that Google and Facebook and Twitter are retaining on their servers AND LOOKING AT IT.

NSA is holding more, and more informative data that Google et al., like all that telephone metadata. Further all that data has potential for serious misuse, and probably is being misused, for political ends. Just its existence is a threat to free speech and freedom to assemble. Want to keep a leader away from a protest, search the data for some reason to hold them for further inquiries and prevent them from traveling, or find an excuse to put them on the no fly list.
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Mike Masnick (profile), 8 Jul 2014 @ 7:29am

Re:
War sucks. I don't even agree that we should be at war right now. But you can't object to the techniques used by the military on the grounds that they don't conform to civilian law. They can't, they never have, they shouldn't, and to object to them is to say that the country of which you are a citizen should not have a military, which is a pretty freaking bad idea.

Hey, can you point me to the Congressional declaration of war? Thanks.

No? Oh crap. We're not actually at war.

Also, if you don't think the 4th amendment applies to the NSA, you need to retake your Constitutional law classes...
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Anonymous Coward, 8 Jul 2014 @ 7:33am

Re: groan
I wasn't aware marshal law is currently in effect inside the United States. Marshal law the only time the US military is legally allowed to suspend the US Constitution. So unless marshal law is in effect, the US military is bound by Constitutional Law.

Please read the 3rd Amendment of the US Constitution:

"The Third Amendment (Amendment III) to the United States Constitution places restrictions on the quartering of soldiers in private homes without the owner's consent, forbidding the practice in peacetime. The amendment is a response to Quartering Acts passed by the British parliament during the American Revolutionary War, which had allowed the British Army to lodge soldiers in private residences."

https://en.wikipedia.org/wiki/Third_Amendment_to_the_United_States_Constitution

Constitut ional Law does apply to the US military. It's also the highest law in the land. Constitutional law supersedes Congressional/Presidential orders. It trumps all laws, bar none.
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MarcAnthony (profile), 8 Jul 2014 @ 7:44am

Re:
But you can't object to the techniques used by the military on the grounds that they don't conform to civilian law.

I actually can and do object; what you are suggesting is that we are under martial law and that this agency is free to do as it pleases without the consent of the governed. Please note that, when Lincoln suspended habeas corpus in the Civil War, Congress authorized that action and even that was later challenged; the SCOTUS rendered the verdict that it was unconstitutional. Here's what they had to say about it: "Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish."
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John Fenderson (profile), 8 Jul 2014 @ 7:45am

Re:
Yes, that's the rationale they use all right. Too bad that it's a woefully insufficient one.
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John Fenderson (profile), 8 Jul 2014 @ 7:49am

Re:
"I don't even agree that we should be at war right now. But you can't object to the techniques used by the military on the grounds that they don't conform to civilian law."

Not only are we not at war right now, we certainly are not fighting a war on our own soil. So I'm not sure how referencing the war of 1812 or the civil war is remotely relevant.
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Anonymous Coward, 8 Jul 2014 @ 8:17am

Re:
"Waaah! Following the law is too hard! Waaah! Waaaaaah!"
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TestPilotDummy, 8 Jul 2014 @ 8:53am

Woke this morning still dreaming, pieces of the puzzle fit together as the sun came over the horizon.

my nursery job died when, the nursery went bankrupt from embezzlement.

My stint at greyhound came just after they killed the UNION.

Construction died when the Building Craze died.

Tick Tock... years go by.. KABOOM 911.

911 - crap explanation, crap 911 Commission report - dis-allow further dialog about the matter, which could put the truth forward and out these oath breaking scum and their unconstitutional crap laws.

Tick tock 10 years of 911 Commission report festering DHS ineptness, waste, and lies, suddenly "they" (I used to consider it WE as a USAF veteran) have to spy on everything..

NDAA comes along, kills my music TV show series of 6 years, cause hey I ain't going to be the one that goes down for interviewing someone that might be on some secret terrorist list. no guts no glory I guess. Add in the copyright BS going on at youtube, and the fact that the LABELS don't even know what the laws are.

I love music, however I quit, put DENY FROM ALL .htaccess in, then ended "ALL" my accounts. Sufferers include, webhosting, domains, bands with no websites, venues, and on and on - I often think who all it effected/screwed.

And here we go again tick tock few more years and we get MIAC report now now calling me "indirectly" a fscking terrorist.

We have DHS reports that call me terrorist.

I think I figured this all out.

I ain't a fscking terrorist.
YOU WHO CALL ME ONE ARE.
YOU WHO PUT THIS INSANE THREAT CRAP OUT ARE THE TERRORISTS.
YOU WHO BREAK YOUR OATH ARE THE TERRORIST.
YOU WHO ALLOW THE BANKSTERS TO FEED ON THIS COUNTRY ARE THE TERRORISTS
YOU WHO SPY UNCONSTITUTIONALLY AND USE YOUR CORRUPT SECRET COURT ARE THE TERRORISTS!

If I was a terrorist, you would already be dead!
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steell (profile), 8 Jul 2014 @ 9:05am

Re:
Posse Comitatus Act, enacted after the Civil War.

You really need to study the US Constitution, as the part that is pretty freaking bad is your belief the US Military has free rein to operate within US borders, and act upon US Citizens.

Last I heard the US Military had not initiated a coup.
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Padpaw (profile), 8 Jul 2014 @ 9:52am

it is blackmail material
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David, 8 Jul 2014 @ 10:42am

Re: Supposed?
Why are you spying on Americans without their consent?

Wrong question. Spying is always without consent.

The questions rather are "Why are you breaking the laws of your land? Why are you defiling the constitution you swore an oath of allegiance on? Why are you turning the land of the free and the brave into the land of the caged and the cowardly? Why are you destroying America and what it stands for? What makes you think are we paying you for erecting a totalitarian regime?"
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John Fenderson (profile), 8 Jul 2014 @ 10:57am

Re: Re: Supposed?
"Spying is always without consent."

I disagree with this. Spying is just another word for surveillance, and you certainly can (and often do) consent to being surveilled.
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John Fenderson (profile), 8 Jul 2014 @ 11:03am

Re: groan
"The distinction between collection and analysis you gloss over time and time again is completely vital"

To you. To me, the distinction is meaningless.

"because no, it is not that terrible to privacy if NSA is holding on its servers but not looking at the same goddamn information that Google and Facebook and Twitter are retaining on their servers AND LOOKING AT IT. "

To you. To me, it is a terrible invasion of privacy. First, Google, Facebook, and Twitter don't have the same information at all, since I don't use them. Even if they did, though, you're glossing over the two key differences: you have to agree to the collection of data by those companies or it doesn't happen and the potential harm presented by those companies is much lower than that presented by the government.
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Anonymous Coward, 8 Jul 2014 @ 12:28pm

100 lb. Sturgeon
So if Sturgeon's Law applies to violating civil liberties-- if hoovering up innocent people's communications is unavoidable-- because "90% of everything is crap" then sure that means 90% of the people in prison must not actually be guilty of the crime they were convicted of. If a 90% false positive rate is unavoidable, as he asserts, due to Sturgeon's Law not just applying to art but to civil liberties as well, then there must surely be a 90% false positive rate in the justice system. Even those most critical of the justice system don't make such radical claims. Maybe, just maybe, we can admit that Sturgeon's Law doesn't apply to all things.
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John Fenderson (profile), 8 Jul 2014 @ 12:36pm

Re: 100 lb. Sturgeon
That all depends on how you define "crap".
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Jack Of Shadows (profile), 8 Jul 2014 @ 10:05pm

Re: Re:
Mike, you might want to look at the AUMF. Also note that a change was made to the rules around Posse Commitatus in the '70's as I recall. His(?) line of reasoning isn't totally far fetched even though it causes nausea in this career US Navy vet.

Oh and if anyone had given me such an order, they'd damned well better make sure there aren't any weapons or weapons systems accessible. My response to an unconstitutional order, well it wouldn't have been pretty.
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The Wanderer (profile), 22 Jul 2014 @ 6:54am

Re: Re: Re:
According to my understanding, the AUMF was specifically an "authorization for the use of military force in Iraq" - i.e., it was specific to what is now called the Iraq war.

As I read this discussion, the "war" it's referring to is not the Iraq war, but the "war on terrorism", which AFAIK has never been - and, arguably, due to the nature of its adversary cannot be - declared by Congress.
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