NSA's Chief Privacy Officer Admits That Maybe The NSA Shouldn't Rely On 'Cute' Interpretations Of The Law

from the ya-think? dept

Wed, Feb 4th 2015 12:24pm — Mike Masnick

Almost exactly a year ago, the NSA announced the hiring of Rebecca Richards to be its Civil Liberties and Privacy Officer, leading many to exclaim, wait, the NSA has that job? Indeed it does. Though we haven't heard much from Richards since that hiring, she did appear on the latest "Cyberlaw Podcast" with Techdirt's number one fanboy, Stewart Baker.

During the podcast, Richards admits what many of us have been arguing for years (since even before the Snowden revelations), that the NSA is probably making a mistake in relying on "cute" interpretations of the law to claim that it has legal justifications for its actions:

"If the law on it's face does not–if you have to go through too many contorted legal [inaudible], I mean what is legal? That's where we need to, not have perhaps cute legal interpretations."

This was in response to a question from Baker, in which he claims that it was "devastating" for the NSA to get criticized when it believed everything it was doing was legal. Baker suggests that the NSA is shocked that "staying on the right side of the law didn't actually protect the agency from disaster."

Except that's the problem, isn't it? These "cute" and (more importantly) "secret" interpretations of the law aren't about actually staying legal. It's about giving the appearance of being legal and letting the NSA's leadership pretend that what they're doing is okay because someone crafted a twisted legal argument -- not because it's actually the right thing to do. In fact, as we noted the week after the Snowden revelations, the really disturbing thing wasn't even in the actions themselves, but the very idea that what the NSA was doing might actually have been legal. When you're twisting the law in such a way, that you can't even admit to the public how you're twisting the law, then how could it possibly be a surprise when people get upset to learn how you've been twisting the law?

The really amazing thing is how tone-deaf Baker, Michael Hayden, Keith Alexander and others are to this argument. They insist up and down that revealing these "secret interpretations" of the law would somehow harm US intelligence practices, yet they can't fathom why the public might possibly be upset that their secret interpretations of the law appear to counter the plain wording of the law.

This should be rather simple: if the public knows what the law says and what it means, then the public won't get surprised when it finds out that the NSA acted within the law. The only problem comes when we find out that the NSA has stretched the interpretation of the law to be completely contrary to the plain language of the law. Don't want the public to get upset? Don't twist the law -- or at least be transparent about your twisted belief in what the law says. The law should never be secret. The interpretation of the law should never be secret. Sure, the NSA can keep certain sources and methods secret -- but that is entirely separate from the question of legal authority.

And yet, Baker still insists that merely revealing the twisted interpretation of the law would somehow reveal sources and methods:

"Isn't the problem there, you say I'm not going to have cute or aggressive legal interpretations, but if you want to explain to people what your new interpretation is you kinda have to put it in a context of facts, and context of facts gives a lot away about how your program actually works."

First of all, it's difficult to see how that would be true -- unless, again, that interpretation of the law is questionable and not in line with what the law actually says. What Baker is saying here is a defense of secret law, arguing that the government should be able to make up its own interpretation of the law and then keep it secret. That is the antithesis of democracy. Yet that's what he advocates for.

And, ridiculously, Richards immediately agrees:

"I don't disagree. I think this is a work in progress."

As Conor Friedersdorf notes in posting his take on this story, the answer Richards should have given was:

Transparency about what the law actually says is a non-negotiable part of having a government by and for the people. Without at least that much transparency, representative democracy cannot function properly.

But, apparently, even the "civil liberties" person at the NSA doesn't seem to recognize that fact.

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Filed Under: civil liberties, nsa, privacy, rebecca richards, secret law, stewart baker, surveillance

27 Comments

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Ninja (profile), 4 Feb 2015 @ 9:32am

They insist up and down that revealing these "secret interpretations" of the law would somehow harm US intelligence practices

Have they asked if the people aren't actually willing to deal with such harm just to be sure? And that if they reveal such interpretations and gain back popular trust they might even get actual support from the citizenry?

And if it harms their practices then they should act like any half-decent intel agency and UPGRADE such practices. What they can't do is violate constitutional rights, privacy and trust repeatedly with no excuse.
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MM_Dandy (profile), 4 Feb 2015 @ 1:09pm

Smells like a duck to me.
It's too bad we can't apply the USSC's "smells like a duck" Aero ruling to the NSA.
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Anonymous Coward, 4 Feb 2015 @ 1:11pm

Good Cop / Bad Cop
Ms. Richards hold the Good Cop position at the NSA.
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Anonymous Coward, 4 Feb 2015 @ 1:49pm

the various security forces should be showing everyone else the correct paths and procedures. if they dont, no one knows what to do, who to trust and what is real. but then we live in a make-believe world already, one that is full of lies and deceit, and that's just from our own side!!
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Zonker, 4 Feb 2015 @ 2:12pm

Any secret interpretation of the law must violate that law by definition. Otherwise the interpretation would not be secret, it would be the law as written.
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Anonymous Coward, 4 Feb 2015 @ 2:46pm

I like to look at it as who is violating rights. Civil rights, human rights, victims rights, native american rights, and finally a right written into the un charter in that order. It helps with perspective.
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tomczerniawski, 4 Feb 2015 @ 3:08pm

I don't think "cute" is the right term for interpretations of law that made total surveillance and secret torture facilities an OK thing for us to do. If that's legal, then laws themselves have no meaning.
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Anonymous Coward, 4 Feb 2015 @ 3:13pm

Re:
We're fighting entities that do total surveillance and torture, along with other acts to the US in the US.
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JBDragon (profile), 4 Feb 2015 @ 3:41pm

Re: Re:
Water boarding and forced to listen to Britney Spears Music is not Torture. It may not be pleasant, but you'll live and no real harm actually came to you!!!

Torture would be things that actually hurt you. Pulling your nails off. Breaking fingers. Electrocution, Stabbing, to the rally bad stuff, Burning you alive or slowly cutting off your head while alive!!! There's really no coming back from that. You're DEAD!!!! The others are painful, maybe you'll die from it in time. Water boarding, please, what a joke. Once it's over, There's not a mark on you. Quite frankly a little water boarding or music is 10000000 times better then anything you would get if things were reversed. That's a proven fact.
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Anonymous Coward, 4 Feb 2015 @ 3:47pm

Re: Re: Re:
I wasn't talking about the US side.
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orbitalinsertion (profile), 4 Feb 2015 @ 3:54pm

Re:
Security through obscurity doesn't work with code, whether it is machine code or legal code.
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orbitalinsertion (profile), 4 Feb 2015 @ 3:57pm

Re:
It's a largely archaic use of the word cute. In fact, it's original usage.
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Anonymous Coward, 4 Feb 2015 @ 4:07pm

We need to keep the law a secret and classify it, due to national security concerns. That's my takeaway from this train wreck of a talk.
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Uriel-238 (profile), 4 Feb 2015 @ 4:08pm

The "Cute" rulings started long ago.
Given that the tax evasion charges against Capone relied on a "cute" interpretation of how statute of limitations worked.

It's a danger of allowing the letter of the law be interpreted or capable of interpretation, is that eventually the law is meaningless in that it can be turned in on itself to mean anything.

Taking a page from district attorney Harvey Dent, eventually you're better off flipping a coin to determine guilt or innocence, than turning to the courts.
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tqk (profile), 4 Feb 2015 @ 4:11pm

Re: Good Cop / Bad Cop
Ms. Richards hold the Good Cop position at the NSA.

I believe you misspelled "PR flack."
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David, 5 Feb 2015 @ 2:52am

You are half wrong.
These "cute" and (more importantly) "secret" interpretations of the law aren't about actually staying legal. It's about giving the appearance of being legal and letting the NSA's leadership pretend that what they're doing is okay because someone crafted a twisted legal argument

These "interpretations" of the law are most certainly not about giving an appearance of being legal: if they were, they would not need to remain secret. They are exclusively a tool of pretense and (quite implausible) deniability.

They are of the "Oh, you hurt me, Judge. Nobody here would think about breaking your arm. I mean, the law. Did I say arm? How silly of me." variety.
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Anonymous Coward, 5 Feb 2015 @ 3:32am

"NSA's Chief Privacy Officer Admits That Maybe The NSA Shouldn't Rely On 'Cute' Interpretations Of The Law"

NO!/s....RE-ALLYY!/s
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Bamboo Harvester (profile), 5 Feb 2015 @ 4:00am

Laws are for the little people, apparently.
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Jeremy Lyman (profile), 5 Feb 2015 @ 5:49am

Seems like...
In a country where citizens can be arrested when an officer reasonably believes there is a law preventing some action, the decision makers at these agencies should be waiting in jail cells to make 'cute' rationalizations. It sure seems like they're breaking a law; and if they're not they've broken its spirit.
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John Fenderson (profile), 5 Feb 2015 @ 7:36am

Happy to see a glimmer
Baker suggests that the NSA is shocked that "staying on the right side of the law didn't actually protect the agency from disaster."

I'm happy to see even a glimmer of recognition that being legal (cute interpretations of the law or not) isn't actually sufficient to excuse the behavior. Being legal is not the same as being ethical or right.
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John Fenderson (profile), 5 Feb 2015 @ 9:17am

Re: Re: Re:
The notion that it's not torture if it doesn't cause significant physical injury is not only completely incorrect and morally bankrupt, it is not supported by the law.
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Anonymous Coward, 5 Feb 2015 @ 10:38am

Re: Re: Re: Re:
I didn't say it was or wasn't torture. Our enemies are worse. I do have first-hand knowledge about this issue.
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John Fenderson (profile), 5 Feb 2015 @ 10:46am

Re: Re: Re: Re: Re:
Sure you did, right here: "Torture would be things that actually hurt you. Pulling your nails off. Breaking fingers. Electrocution, Stabbing, to the rally bad stuff, Burning you alive or slowly cutting off your head while alive!!! "

"Our enemies are worse. I do have first-hand knowledge about this issue."

I believe you, but I don't see how that's meaningful in discussions about US torture.
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Uriel-238 (profile), 5 Feb 2015 @ 11:20am

Laws are always for the little people.
Napoleon as emperor established the notion that all people, even the Emperor, himself, are little people. (Totally not a joke about his stature).

Problems come when the system allows for big people.
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Uriel-238 (profile), 5 Feb 2015 @ 11:30am

"Our enemies are worse"
...doesn't justify us being bad or crossing the line.

Consider, say, human sacrifice. That those guys throw fifteen children into the volcano once a year, doesn't make it any better that we throw three children into the volcano once a year.

A more real, contemporary example: China's 10 giga-ton carbon footprint doesn't make our 5 giga-ton carbon footprint more justifiable.

Our torture program, and that we actually try to legally condone it helps to retroactively justify the 9/11 attacks, and all future campaigns of terror against the US.
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Anonymous Coward, 5 Feb 2015 @ 12:22pm

When I was 16, my mom caught me sneaking into the house at 1:45am, even though my curfew was 1am. I explained to her that she had never specified a Time Zone, and that it was still 11:45pm on the west coast. She responded by pointing out that my cute dodge was bullshit, and that it still didn't explain why I was sneaking in, if I did in fact truly believe that I was actually getting home early.

In the NSA's world, I should have pointed out that her use of "context" was unfair... and my mom would have realized that I was right and handed me a bottle of Scotch and bought me a Ferrari.
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GEMont (profile), 6 Feb 2015 @ 1:50pm

Addendum
"NSA's Chief Privacy Officer Admits That Maybe The NSA Shouldn't Rely On 'Cute' Interpretations Of The Law",
but as long as the public is allowed to ask questions and as long as the federal government has to pretend to follow the law, the NSA will just have to keep on re-interpreting the law to suit its needs and use these 'cute' interpretations to circumvent the law and the public good.
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