These Clueless Politicians Are The Ones Determining If The NSA Gets To Keep Spying On All Of Us

from the we-deserve-better dept

Mon, May 11th 2015 4:06am — Mike Masnick

On Thursday, the 2nd Circuit appeals court delivered a huge win for people who believe in the 4th Amendment and civil liberties, even if the court didn't make it all the way to a 4th Amendment analysis. It still showed that the big metadata collection program that the NSA (and its defenders) claim is authorized by Section 215 of the PATRIOT Act clearly was not so authorized. The law is pretty clear that you can't do what the NSA is doing, but thanks to an ever-compliant rubber-stamp-wielding FISA Court, the program got a quick rubber stamp with little real thought. However, that's now changing (thanks to Ed Snowden...).

But the really incredible thing has been the reaction to this ruling by the politicians who are about to vote on surveillance reform. The claims are so ridiculous and so wrong that it makes you wonder how the hell these are the people in charge of determining the future of NSA surveillance. Let's start with Senator John McCain. Rather than discuss the specific reasoning in the ruling and the failures of the NSA and Congress that the case pointed out, McCain went with the kneejerk "But 9/11!" response even though it makes absolutely no sense at all in this context:

“It’s pretty clear that 9/11 could have been prevented if we had known about some of the communications that were linked to those who committed the terrible atrocity of 9/11.”

McCain added that the government has to balance that capacity with privacy and admitted that it has overstepped from “time to time.” While he called for a public debate to come to an agreement that balances privacy with security, he said it’s integral that Americans “understand” the threat.

“People seem to have forgotten 9/11,” he said.

“People don’t understand that there are thousands of young people all over the world who are motivated by this radical brand of Islam, which is our enemy.”

First of all, no, 9/11 would not have been prevented if this info had been available. While some have claimed that such a program would have allowed officials to track a phone call from Khalid al-Midhar, that story has since been debunked, as it was noted that federal officials were already tracking such info -- they just failed to put the information together in time. Meanwhile, as for all these repeats of "9/11, 9/11," it's worth remembering that even the leaders of the 9/11 Commission have said the surveillance program goes too far.

And, of course, none of that touches on what was actually in the ruling itself, which makes a really strong argument as to why the bulk phone records program is bogus and a violation of the 4th Amendment (no, it doesn't go all the way there, but lays all the groundwork for such a ruling). And, really, it's incredibly hypocritical to argue that because of an attack 14 years ago, we should completely give up our fundamental Constitutional freedoms. Is McCain seriously arguing that a single terrorist attack should wipe out the 4th Amendment?

Next up on the parade of cluelessness: Senate Majority Leader Mitch McConnell who not only continues to defend the bulk phone records collection, but is more adamant than ever that Section 215 of the PATRIOT Act must be renewed to keep that program going -- even though the court just clearly said that the law does not authorize such a program. But, even worse, McConnell still doesn't seem to understand even the most basic facts about the program he thinks it's urgent to renew. His main complaint about the alternative "USA FREEDOM Act" is this:

"The USA Freedom Act would replace Section 215 with an untested, untried, and more cumbersome system. It would not end bulk collection of call data," McConnell said, referring to the provision of the Patriot Act that the NSA says justifies its bulk data sweeps. "Instead, it would have untrained corporate employees with uncertain supervision and protocols do the collecting. So it switches this responsibility from the NSA, with total oversight, to corporate employees with uncertain supervision and protocols.

Except, he's 100% wrong. As in totally wrong. The data he's talking about are the phone records that every phone company already has and already keeps for a certain period of time. The bulk phone records program just makes sure that the same info is also given to the NSA. So, get rid of the program and the same employees at the same telcos with the same experience and training will still have access to it. Nothing changes on that front, no matter what insane thing McConnell says.

But that also doesn't stop Senator Tom Cotton from making the same absolutely incorrect claim:

"One alternative offered by opponents of this program is to have phone companies retain control of all call data and provide the NSA only the data responsive to searches phone companies would run on the NSA's behalf. This is not technologically feasible."

Uh, sure it's technically feasible. It's how plenty of other programs already function.

Seriously: how are these the people voting on this?

Or how about Marco Rubio? He also plays the stupid, wrong, debunked "would have stopped 9/11 card":

"Here's the truth. If this program had existed before 9/11, it is quite possible that we would have known that the 9/11 hijacker Khalid al-Mihdhar was living in San Diego and making phone calls to an al-Qaida safehouse in Yemen. There's no guarantee we would have known. Theres no way we can go back in time and prove it, but there is a probability that we would have known and there's a probability that American lives could have been saved."

Except, as already noted above, that claim was debunked by multiple people, including in a detailed ProPublica piece.

Rubio also went further in misrepresenting the program:

"The next time that any politician—senator, congressman, talking head, whatever it may be—stands up and says that the U.S. government is listening to your phone calls or going through your phone records, they're lying. It just is not true."

Rubio is setting up a strawman here. No one is saying that they're listening to your calls or "going through" your phone records (though they are doing that for some people. But everyone (now) openly admits that the NSA collects those phone records -- and that's the thing people are concerned about.

Finally, we have Senator Richard Burr, the head of the Senate Intelligence Committee, who's supposed to understand these programs. Yet he screwed up so badly that his office had to issue a correction and go back and literally rewrite the official transcript, after Burr claimed that the same program sucked up IP addresses in addition to phone numbers.

Either way, there's a lot of pure FUD going on out there right now, almost all of it in the service of trying to let the NSA keep its toys and continue to undermine the 4th Amendment. Don't let them get away with it.

But, even more importantly, people should be asking: why are we letting these idiots make the decision on this stuff when they either don't understand it or are outright lying to the American public?

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Filed Under: bulk collection, john mccain, marco rubio, mitch mcconnell, nsa, patriot act, richard burr, section 215, senators, surveillance, tom cotton, usa freedom act

57 Comments

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cypherspace (profile), 11 May 2015 @ 4:15am

At Least He's Honest
"...It would not end bulk collection of call data," McConnell said, referring to the provision of the Patriot Act that the NSA says justifies its bulk data sweeps.
The only time pols are thoroughly honest with us is when we're going to be screwed over.
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Anonymous Coward, 11 May 2015 @ 4:19am

"One alternative offered by opponents of this program is to have phone companies retain control of all call data and provide the NSA only the data responsive to searches phone companies would run on the NSA's behalf. This is not technologically feasible."

Is he claiming that no company can respond to a subpoena requesting records, and does this mean all company records should be given to the NSA?
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Anonymous Coward, 11 May 2015 @ 4:21am

“It’s pretty clear that 9/11 could have been prevented if we had known about some of the communications that were linked to those who committed the terrible atrocity of 9/11.”

No, 9/11 would've been prevented if your friend actually fucking did something to prevent it it instead of allowing it to happen anyway.

“People seem to have forgotten 9/11,”

No, we haven't forgotten because you keep bringing it up as a justification to surrender rights.

“People don’t understand that there are thousands of young people all over the world who are motivated by this radical brand of Islam, which is our enemy.”

That's not what you said about those so-called "moderates."
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lucidrenegade (profile), 11 May 2015 @ 4:42am

McCain has always been a warmonger, so I'm not surprised.
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Anonymous Coward, 11 May 2015 @ 4:48am

Terrorist politicians.
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Anonymous Coward, 11 May 2015 @ 4:49am

Response to: Anonymous Coward on May 11th, 2015 @ 4:19am
Given the government's track record for responding to records requests, it's easy to see how they would think this way.
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Agonistes, 11 May 2015 @ 4:54am

Can you believe some people I know still mock me because I connect through a VPN 100% of the time with all devices and test it several times a week for DNS leaks and to see if my network killswitch responds quickly enough?
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Anonymous Coward, 11 May 2015 @ 5:02am

This line of thinking could wipe out a lot of rights
With this kind of thinking, we could erase the 4th amendment so that Big Brother can monitor all of our communications. We could wipe out the 1st amendment so that Big Brother could prevent further radicalization of others both with speech and religion. Then they could wipe out the 2nd amendment so the bad guys won't have guns. But as Thomas Jefferson said, more or less, I would rather be bothered by the problems of too much liberty than too little.
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David, 11 May 2015 @ 5:19am

Nobody understands the court decision
The court was not at all ruling on the constitutionality of the Patriot Act and Section 215: thats SCOTUS material.

What the court said is that Patriot Act and Section 215 do not authorize the bulk surveillance the government is performing, and if it had been the Senate's intent to do this kind of mass surveillance, they should pass the respective decisions to do so.

And given the bilateral hawks circling Congress, it is likely that this is just what they'll do. In the mean time they have the inconvenience that renewing Section 215, which the court has nothing against, will not serve as a legitimization of the ongoing bulk surveillance.

So they need to man up and pass legislation that screws the (Re)public and the Constitution much more openly. And this manning up is just what they are doing.

The problem with that is that it will make it more likely that those laws will not survive a test of constitutionality that is bound to come up eventually.

The court decision here does not boil down to "stop your crimes". It merely is "stop lying about your crimes". Which is a first step towards getting them stopped, but that would be the job of SCOTUS. Or other people caring about the Constitution and the U.S.A. rather than their hide and power and pockets. So obviously not Congress.
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Rich Fiscus (profile), 11 May 2015 @ 5:24am

Dear Senator McConnell,

If you would stop wiping your ass with the Constitution for a few minutes and just read it, you would learn we've been "testing" this system for more than 200 years.
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Ninja (profile), 11 May 2015 @ 5:57am

Re: This line of thinking could wipe out a lot of rights
That. We are already seeing open attempts of destroying freedom of speech using the 'terrorism' bogeyman elsewhere. It's a bit more veiled in the US. As for the 2nd there are some people chewing the borders already blaming the tools for the crimes.

We could erase or will erase?
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Reality bites, 11 May 2015 @ 6:03am

With massive amounts of data comes massive responsiblity
It could be said that if you have all the data, then also the responsibility comes with it. If you know who the criminals are yet do nothing then you are as responsible as they are. You are either an accomplice or inept its one or the other.

Perhaps its time for the victims of crime to start suing the government, since the government knows who is doing the crime and choose to do nothing they are equally responsible.
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Anonymous Coward, 11 May 2015 @ 6:08am

Almost as wrong as the "PearlHarbor could have been prevented if...". Funny how a few decades later it turns out that they not only knew about the attack days before but they even sent in more ships to make it bigger.

Its not about terrorism, its about spying on the plebs.
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Reality bites, 11 May 2015 @ 6:31am

Edward Snowden was a Pleb, we just need the plebs to spill the beans on the overlords
Since the parasitic scum in charge are way to lazy and stupid to do it themselves all that is needed to undo them is people like Snowden to whistleblow on them. Everytime they want to break the law, let them do it then spill the beans on them.
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Anonymous Coward, 11 May 2015 @ 6:40am

Of course they are going through them
There may not be any humans going through my phone records, but there is absolutely no doubt that there are algorithms going through those records, looking for any kind of pattern or sequence they can flag as suspicious.
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Patrick Bay, 11 May 2015 @ 7:08am

Vote harder!
Obviously government is the solution and not the problem. Obviously.
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Agonistes, 11 May 2015 @ 7:17am

I read somewhere this week that keystrokes that are typed into Facebook fields, even if not actually entered (via the enter key) are still captured even if you delete them and never actually send anything or enter other, different keystrokes. Now I don't know if that is true or not since I didn't look into it very hard (I, literally ((actually literally literally)), have never had a Facebook account) but I have no reason to doubt it. Just another intrusion to be aware of, and I'm sure FB isn't the only major name with the ability. I'd love it if anyone else also heard this and could point me towards the story if they know where it is, or a LMGTFY link even.
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John Fenderson (profile), 11 May 2015 @ 7:34am

Re:
This is old news, actually, and yes it's true. Facebook's statement about this is that they use that information to find out what people change their minds about posting to work out ways to encourage them to post more. Here's one writeup about it, but there are lots more: http://www.slate.com/articles/technology/future_tense/2013/12/facebook_self_censorship_what_happens_ to_the_posts_you_don_t_publish.html

"I'm sure FB isn't the only major name with the ability."

Any website can technically do the same.
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Agonistes, 11 May 2015 @ 7:58am

Re: Re:
Cool, thanks. Facebook news never catches my attention so I can admit whatever FB news I'm exposed to is skipped over or goes in one ear and out the other. I guess I probably should have known this since I'm guessing this is how Google autocompletes while you are in the middle of typing a search.
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John Fenderson (profile), 11 May 2015 @ 7:58am

Re: Of course they are going through them
We need to fight against the false idea (thanks a lot, Google) that if it's just a program looking at your information then it's not an invasion of privacy. It seems obvious, but too many people buy into it.
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Anonymous Coward, 11 May 2015 @ 8:09am

Can someone explain to me how FUD is not the literal definition of terrorism?
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Anonymous Coward, 11 May 2015 @ 8:14am

Maybe its a good thing we have lobbyist. Otherwise, these idiots wouldnt even remember to show up to vote.
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Anonymous Coward, 11 May 2015 @ 8:43am

Re:
FUD = Fucked Up Democracy.

Though we are technically a Republic.
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Joe Publius, 11 May 2015 @ 8:54am

Re: Re: This line of thinking could wipe out a lot of rights
The people should be angry when their legislator's best argument is fear.
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Anonymous Coward, 11 May 2015 @ 8:54am

Re: Re:
FUD is "Fear, Uncertainty and Doubt."

Terrorism is defined as:
1. the use of violence and threats to intimidate or coerce, especially for political purposes.
2. the state of fear and submission produced by terrorism or terrorization.
3. a terroristic method of governing or of resisting a government.

Going by definition 2, terrorize is defined as:
1. to fill or overcome with terror.
2. to dominate or coerce by intimidation.
3. to produce widespread fear by acts of violence, as bombings.

Going by definition 1, terror is defined as:
1. intense, sharp, overmastering fear: to be frantic with terror.
2. an instance or cause of intense fear or anxiety; quality of causing terror: to be a terror to evildoers.
3. any period of frightful violence or bloodshed likened to the Reign of Terror in France.
4. violence or threats of violence used for intimidation or coercion; terrorism.
5. Informal. a person or thing that is especially annoying or unpleasant.

So how is FEAR, Uncertainty and Doubt anything less than terrorism?
And that's ignoring the first definition of terrorism which I believe our government is very well guilty of.
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John Fenderson (profile), 11 May 2015 @ 8:56am

Re: Re:
We are technically a combination of both.
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Joe Publius, 11 May 2015 @ 8:56am

PS
How did we get from, "the only thing we have to fear, is fear itself", to "the only thing we have to fear is terrorism, terrorism, terrorism"?

It's a week late for this reference to be spot-on, but fear leads to the dark-side, and this might be a ground-zero moment right here.
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RD, 11 May 2015 @ 9:13am

No, he is not
"Is McCain seriously arguing that a single terrorist attack should wipe out the 4th Amendment?"

No, he is seriously arguing that a single terrorist attack should wipe out *the constitution*
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pouar (profile), 11 May 2015 @ 9:41am

Even though McCain is a good person considering what he went through for America. He's obviously wrong about the NSA mass collection of private info doing anything to stop events like 9/11
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John Fenderson (profile), 11 May 2015 @ 9:59am

Re:
"Even though McCain is a good person considering what he went through for America."

What a person has gone through says nothing about whether or not they are a good person. Their present-day actions speak to that. I don't know McCain and so I have no opinion on how "good" he is, but his presidential run did convince me that he is mentally unstable.

Regardless of all that, he is 100% wrong on this particular issue.
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HegemonicDistortion (profile), 11 May 2015 @ 10:03am

McCain, McConnell, Miss Lindsey, Feinstein...

The warmongers are the same as the fearmongers.
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radix (profile), 11 May 2015 @ 10:17am

Debunking "because terrorism"
There are two fundamental aspects of the metadata programs, according to the NSA and its defenders:
1) It would have stopped (and continues to stop) terrorism.
2) Your data isn't being searched.

Here's the biggest problem with those statements: they CAN'T both be true at the same time. It's physically impossible.

In order to prevent an attack, data has to be analyzed in real time. If they are putting together a web of calls/emails/transactions before something happens, that necessarily means that an algorithm needs access to all those calls/emails/transactions.

If your data isn't being searched, then it isn't part of that web, and simply pollutes the data set.

The only reason your metadata needs to be collected is for post-incident investigation, so that it can't be destroyed and therefore become inaccessible even with a warrant. But that's not prevention.
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Teamchaos (profile), 11 May 2015 @ 10:39am

Non-partisan?
From The Hill (http://thehill.com/policy/national-security/nsa/241511-pressure-mounts-as-congress-dives-into-nsa-f ight):

Among those provisions, which will expire at the end of the month unless Congress acts, is Section 215, which the Obama administration has said authorizes the government to collect, in bulk, “metadata” records about millions of Americans’ phone calls.

Let's give credit where credit is due, the republicans mentioned in this post are not the only idiots in Washington.
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nasch (profile), 11 May 2015 @ 10:45am

Re:
Funny how a few decades later it turns out that they not only knew about the attack days before but they even sent in more ships to make it bigger.

Some interesting reading:

https://en.wikipedia.org/wiki/Pearl_Harbor_advance-knowledge_conspiracy_theory
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nasch (profile), 11 May 2015 @ 10:47am

Re: Re: Re:
So how is FEAR, Uncertainty and Doubt anything less than terrorism?

Because FUD doesn't involve violence. At least not any usage of it that I've ever seen.
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nasch (profile), 11 May 2015 @ 10:48am

Re: Non-partisan?

Let's give credit where credit is due, the republicans mentioned in this post are not the only idiots in Washington.

The post would be much too long if it listed all the idiots in Washington. ;-)
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Anonymous Anonymous Coward, 11 May 2015 @ 10:59am

Re: Re: Non-partisan?
You mean there are more than (100+435+1) 536 of them?
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nasch (profile), 11 May 2015 @ 11:13am

Re: Re: Re: Non-partisan?
You mean there are more than (100+435+1) 536 of them?

Yeah, way more.
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radix (profile), 11 May 2015 @ 11:15am

Re: Re: Re: Non-partisan?
There are thousands of unelected folks that set and enforce policy. Clapper, Hayden and their ilk are high profile, but yes, the whole political machine is much, much larger than 535 regional- and one national figurehead.
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nasch (profile), 11 May 2015 @ 11:38am

Re: Re: Re: Re: Non-partisan?
Not to say that they're all idiots, but there are plenty.
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Anonymous Coward, 11 May 2015 @ 11:39am

Re: PS
I can tell you what happened. It isn't just that they knocked down a couple buildings. It is because they hit the Pentagon and were going for the White House or Capitol with the other plane. So it was a direct attack on heads of state. That is what has them scared. They and the media won't say it, but the pretend it is to protect us serfs. But they aren't scared for the serfs, they are scared fro themselves.
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John Fenderson (profile), 11 May 2015 @ 12:08pm

Re: Re: Re: Re: Re: Non-partisan?
As one of the demotivational posters says: none of us are as dumb as all of us.
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nasch (profile), 11 May 2015 @ 12:21pm

Re: Re: Re: Re: Re: Re: Non-partisan?
A person is smart. People are dumb, panicky animals and you know it.
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Anonymous Coward, 11 May 2015 @ 12:23pm

Re: Nobody understands the court decision
Technically it's possible to exempt from a constitutional challenge: the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
Tell the supreme court it can not rule on the constitutionality of the law, tell the low courts as well, since they are all created by acts of congress. At least they would be honest if they did that.
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That One Other Not So Random Guy, 11 May 2015 @ 12:45pm

they just failed to put the information together in time.
Just ask Sibel Edmonds how true it is they "failed to put the information together in time."
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Gwiz (profile), 11 May 2015 @ 12:56pm

Re: Re: Re: Re: Re: Re: Re: Non-partisan?
MIB FTW!
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That One Guy (profile), 11 May 2015 @ 2:31pm

Consider the target audience
They're not speaking to the public when they make these claims and statements, they're speaking to their fellow congresscritters, hanging the threat of 'If you do away with our spying abilities, and something goes wrong, you're going to be blamed for it'(ignoring the fact that no matter what they do, if anything happens they'll still be blamed for it) over their heads in order to try and make them put self-interest over their responsibility towards the public.

With few exceptions, no-one gets elected, especially multiple times, if they're an idiot, and while the claims may be complete and utter rot, the threat they imply is quite persuasive I imagine, given how insanely risk-averse politicians are.
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Anonymous Coward, 11 May 2015 @ 3:34pm

No, 9/11 couldn't be prevented because it was an inside job.
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ECA (profile), 11 May 2015 @ 4:31pm

I wonder
What happens when Politicians get paranoid of the people they are SUPPOSED to represent?
We drop all the laws that were created for our freedoms..
Laws are not used EQUALLY..
A Society.. based on information, GETS no information.. And those that release ANY information end up in jail
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justme, 11 May 2015 @ 6:59pm

The key point. . .
Is McCain seriously arguing that a single terrorist attack should wipe out the 4th Amendment?

There assertion is actually worse, That the very threat of a terrorist attack is enough to remove all our constitutional rights.

seriously, what happened to, the right to a fair trial, the right to counsel, the presumption of innocent, being free from unwarranted search and seizure, the right to freely assemble and seek redress, etc.

To me those are America!
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Anonymous Coward, 11 May 2015 @ 8:35pm

Re:
Yes
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Rekrul, 11 May 2015 @ 10:31pm

But, even more importantly, people should be asking: why are we letting these idiots make the decision on this stuff when they either don't understand it or are outright lying to the American public?

Isn't that how the government operates on everything? They don't understand technology, but they vote on laws that govern it. They don't understand trade issues, but they vote on trade agreements. They don't understand the effects of oil and gas companies polluting the environment, but they vote on laws governing those industries.

In fact, when have they actually voted on an issue that they truly understand?
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Stephen, 11 May 2015 @ 10:38pm

Cluelessness and the NSA
“It’s pretty clear that 9/11 could have been prevented if we had known about some of the communications that were linked to those who committed the terrible atrocity of 9/11.”

First of all, no, 9/11 would not have been prevented if this info had been available.
That goes without saying. If the NSA did not detect in advance the recent terrorist shooting incident in Texas OR the one in Boston (or for that matter detect that guy on the gyrocopter before he landed on that lawn in DC) why on Earth would anyone believe the NSA would be any more likely to detect another 9/11?

That gyrocopter incident was probably the most telling. If the NSA did not have a clue about somebody who announces his plans publicly in advance, how on Earth is it going to find out the plans of those who don't?
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Anonymous Coward, 12 May 2015 @ 2:41am

Re:
It's the politicians/talking-heads equivalent of a kid sticking his fingers in his ears and going "NAHNAHNAH I can't hear you!"
"9/119/119/119/11 9/119/119/11!"
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nasch (profile), 12 May 2015 @ 7:26am

Re:
In fact, when have they actually voted on an issue that they truly understand?

They vote on their salary now and then.
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Chris in Utah (profile), 12 May 2015 @ 3:34pm

But, even more importantly, people should be asking: why are we letting these idiots make the decision on this stuff when they either don't understand it or are outright lying to the American public?
Cop Arrest Social Worker

Yet.
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Chris in Utah (profile), 12 May 2015 @ 3:35pm

Re:
Previous comment got fubared.

Because you haven't covered stories and go down the rabbit hole with stories like https://kateofgaia.wordpress.com/2014/06/26/cops-arrest-social-worker/ This

Yet
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