Judge Scalia Suggests The Supreme Court May Be Asked To Determine Constitutionality Of Metadata Program

from the might-allow-terrorism-to-trump-the-Constitution dept

The US Supreme Court has yet to take a case that directly challenges the NSA's domestic surveillance programs, having turned down EPIC's turnstile-jumping attempt to bring the bulk collection to the court's attention back in November. More recently, it also declined to grant standing to a case pursued by the Center for Constitutional Rights challenging the legality of Bush-era surveillance programs.

But in a talk given at Brooklyn Law School last Friday, visiting Supreme Court Justice Antonin Scalia dropped hints that the telephone metadata program's constitutionality may be put in the hands of the Supreme Court.

Mr. Napolitano then asked if mass surveillance of cellphones and emails would be prohibited by the Fourth Amendment, which states: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.” Many of the National Security Agency’s controversial surveillance programs were prominently exposed last year by Edward Snowden, a former security contracted who leaked sensitive documents revealing the U.S. government’s wide collection of digital data.

“You’re getting into the NSA stuff, right?” Mr. Scalia remarked–one of many snarky, laughter-drawing lines he issued throughout the evening. “This may come before the court. And I don’t want to get myself recused.” But Mr. Scalia nevertheless directly said he didn’t feel “conversations” were part of the “persons, houses, papers and effects” covered by the Fourth Amendment.

If this program does end up in front of the Court, it appears Scalia will be casting his lot with the government and its expansive reading of the Third Party Doctrine. He also suggested the Supreme Court wasn't up to the task, albeit based on severely backwards logic.

"The Supreme Court doesn't know diddly about the nature and extent of the threat," Scalia said. Later on, he added, "It's truly stupid that my court is going to be the last word on it."

Why Scalia feels the "nature and extent of the threat" has any bearing on the program's adherence to the Constitution is beyond me, and his apparent willingness to defer to the government's justifications for domestic spying is troubling. This argument is on par with the City of New York arguing for the stop-and-frisk program because it was useful in fighting crime, an argument the presiding judge dismissed as irrelevant to the issue at hand: the constitutionality of the program itself.

No doubt the Supreme Court will get plenty of chances to hear the government discuss the nature and extent of the terrorist threat. But it needs to keep in mind that it's ruling on the constitutionality, not whether the ends justify the means.

This peculiar statement is also troubling in light of Scalia's earlier comments that same night, where he pointed out the dangers of originalism, and reinterpreting the Constitution in light of technological advances.

“It’s the freedom of speech. It doesn’t matter whether you’re speaking in semaphore or a cellphone or any type of modern technology. You apply the same First Amendment principals to the new technology that you applied to the old. And the same for reasonable searches and seizures.”

If Scalia's going to argue that the times may change but the Constitution doesn't, then he needs to be consistent. Just because a threat that was minimal before September 2001 is now viewed as all-encompassing by the government should have no bearing on whether the Supreme Court is capable of issuing an opinion on the constitutionality of the NSA's domestic surveillance.

On the plus side, a person in the audience raised a question that may cause Scalia to reconsider his strict definition of what the Fourth Amendment covers.

When Mr. Scalia later took questions from audience members, a law student surprised the self-confident justice by pressing him on whether personal computer data–not conversations–should be protected. “Do you believe that data within a computer would be too broad of a construction of the word ‘effects’ under the Fourth Amendment?” the student inquired.

“Mmm! Mmm!” Mr. Scalia exclaimed to himself, clearly impressed with the line of argument but cautious about weighing in on a topic he expects to come up before the U.S. Supreme Court.

“I better not answer that,” he added whimsically. “That’s something that may well come up. It’s a really good question.”

So, that's a bit more promising. And Scalia is just one of nine justices. With two judges having issued contrary opinions on the Section 215 program, it may be the Court's responsibility to sort this out. Of course, this is just one of the NSA's programs with constitutional implications, and it's one that looks to be severely scaled back if not sacrificed completely to keep other, more intrusive programs free from additional scrutiny.

Filed Under: 4th amendment, antonin scalia, bulk metadata collection, nsa, section 215, supreme court

Almost Everything About The Bulk Collection Of Phone Data Is Illegal

from the a-simple-explanation dept

We already wrote about the Privacy and Civil Liberties Oversight Board (PCLOB) and its scathing report as to how the program to collect phone records on pretty much every phone call in the US was both illegal and unconstitutional. However, if you don't want to get too down in the weeds over why it's illegal, the absolutely best summary I've seen comes from Julian Sanchez and fits into a tweet:

215 allows FBI to get records relevant to an investigation. PCLOB: NSA program fails on "FBI", "records," "relevant" & "investigation."

— Julian Sanchez (@normative) January 23, 2014

In case you can't read that, it says:

215 allows FBI to get records relevant to an investigation. PCLOB: NSA program fails on "FBI", "records," "relevant" & "investigation."

Believe it or not, he's not even being that glib here. Section 215 is pretty clear on all of those things. It's just for the FBI, and allows them to get records relevant to a specific investigation. Yet, the program is run by the NSA, which collects the data, instead of the FBI. It is not collecting "records" as intended by the law, and most of those records are irrelevant, and none of this is tied to any particular investigation. I'm reminded of the joke that the Holy Roman Empire wasn't actually holy, Roman or an empire.

When the law includes four basic conditions, and basically all four of them are not met, the program is beyond illegal. It's just a farce. It's kind of amazing that President Obama and other NSA defenders are still arguing that the program is perfectly fine.

Filed Under: bulk metadata collection, business records, fbi, julian sanchez, nsa, pclob, section 215, surveillance

Even A FISA Court Judge Basically Called The NSA's Bulk Record Collections 'Illegal'

from the the-casual-abandonment-of-the-4th-Amendment dept

The legality of the NSA's bulk records programs is finally being questioned by a federal judge. Judge Richard Leon of the DC circuit court, presiding over a lawsuit brought by Larry Klayman against the government, had this to say in December about the NSA's Section 215 collections.

The Court finds that it does... have the authority to evaluate plaintiffs' constitutional challenges to the NSA's conduct, notwithstanding the fact that it was done pursuant to orders issued by the Foreign Intelligence Surveillance Court ("FISC"). And after careful consideration of the parties' pleadings and supplemental pleadings, the representations made on the record at the November 18, 2013 hearings regarding these motions, and the applicable law, the Court concludes that plaintiffs have standing to challenge the constitutionality of the Government's bulk collection and querying of phone record metadata, that they have demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim, and that they will suffer irreparable harm absent preliminary injunctive relief.

Leon refused to buy into the government's tortured rhetoric, questioning its insistence that the number of Americans affected was limited by specifically pointing out its practice of "contact chaining," which allows it to access millions of stored metadata records wholly unrelated to its investigatons. (This contrasts heavily with another federal judge's opinion, which went the other way and trotted out the NSA's talking points and nonexistent sections of the 9/11 Commission's report in support of the decision.)

But these aren't the only two judges to weigh in on the constitutionality of the program. FISC judge Reggie Walton stated the following in his 2009 court order, after detailing the agency's extensive abuse of the metadata collection over the previous three years.

In light of the foregoing, the Court returns to fundamental principles underlying its authorizations. In order to compel the production of tangible things to the government, the Court must find that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) to obtain foreign intelligence information not concerning a U.S. person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a US. person is not conducted solely on the basis of activities protected by the First Amendment. 50 U.S.C. 1861.

The government's applications have all acknowledged that, of the [xxxxx] of call detail records NSA receives per day (currently over [xxxxxxx] per day), the vast majority of individual records that are being sought pertain neither to [xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx]. In other words, nearly all of the call detail records collected pertain to communications of non-U.S. persons who are not the subject of an FBI investigation to obtain foreign intelligence information, are communications of US. persons who are not the subject of an FBI investigation to protect against international terrorism or clandestine intelligence activities, and are data that otherwise could not be legally captured in bulk by the government. Ordinarily, this alone would provide sufficient grounds for a judge to deny the application.

Now, while Walton's order detailed a great magnitude of NSA abuse, what he states here questions the legality of the program's very existence. Even with the restrictions placed on accessing the collected metadata, the underlying concept is flawed. As Walton states, "nearly all" US citizens' call records obtained are those of citizens who are not subjects of NSA or FBI investigations and are not being used as part of the NSA's counterterrorism efforts.

Walton says that this data is only being collected "legally" thanks to the permission of the FISA court, which had just spent three years being undermined by the NSA's lies and misrepresentations. Without the FISA court's intervention and the agency's ability to abide by the court's rulings, the NSA's collection would be illegal.

Walton's recognition of the fact that nearly all data being collected is irrelevant puts him on the same page as Judge Leon: bulk, untargeted collection of irrelevant metadata is not constitutional.

After stating that fewer than 300 unique identifiers met the RAS standard and were used as "seeds" to query the metadata in 2012, Ms. Shea notes that "[b]ecause the same seed identifier can be queried more than once over time, can generate multiple responsive records, and can be used to obtain contact numbers up to three 'hops' from the seed identifier, the number of metadata records responsive to such queries is substantially larger than 300, but is still a very small percentage of the total volume of metadata records..."

[I]t belabors the obvious to note that even a few million phone numbers is "a very small percentage of the total volume of metadata records" if the Government has collected metadata records on hundreds of millions of phone numbers.

The NSA relies on an old ruling governing pen registers that was given an expansive re-reading by FISC judge Colleen Kollar-Kotelly. This mutation of the pen register law has allowed to the NSA to use the low privacy bar set by the surveillance method while retaining none of its limitations. The pen register allows for a great deal of information gathering. The check against its abuse was supposed to be that it had to be targeted. Government and law enforcement agencies needed to have a person of interest in order to have the pen register approved. It was limited both in time and scope. That's no longer the case.

That Section 215 isn't Constitutional isn't a surprise, but it will take a lot to overturn the reliance on decades-old laws that no longer pertain to the technology in use and the realities of the NSA's ongoing bulk records collections. As Leon stated in his decision, technological advances have made the NSA's job easier but the expectation of privacy is still there, no matter how the courts (FISC, federal) have interpreted existing laws.

It's one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government.

Walton saw the same problems, which were made worse by the NSA's "systemic abuse" of the collections. He shut it down and forced the NSA to route its access requests through the court on a case-by-case basis. That's no longer happening, which means the agency has returned to rubber-stamped court orders demanding telcos turn over every call record on a rolling 90-day basis. A return to the court controlling access to the database would at least force the agency to refine its searches and provide evidence that what it seeks is actually relevant to ongoing investigations, rather than just claiming all records are "relevant" because, well, anything's possible.

Filed Under: bulk metadata collection, fisa court, fisc, patriot act, reggie walton, section 215

FISA Court Rubberstamps Yet Another Renewal Of NSA's Collecting All Your Phone Data

from the rubber-stamp-inked-and-ready-to-go dept

In a move that will shock no one, the FISA Court has, once again, reapproved the NSA's request to collect metadata on pretty much every phone call. The Director of National Intelligence put out a statement once again trying to defend this, and noting that it's appealing the one court ruling against the program (which is true, they filed an appeal this morning).

It is the administration's view, consistent with the recent holdings of the United States District Courts for the Southern District of New York and Southern District of California, as well as the findings of 15 judges of the Foreign Intelligence Surveillance Court on 36 separate occasions over the past seven years, that the telephony metadata collection program is lawful. The Department of Justice has filed an appeal of the lone contrary decision issued by the United States District Court for the District of Columbia.

The announcement also pays lip service to the White House's task force's findings that the program required significant changes claiming that the intelligence community is "open to modifications to this program." Yeah, right. We'll see just how open they are when the changes are actually proposed.

Nevertheless, the Intelligence Community continues to be open to modifications to this program that would provide additional privacy and civil liberty protections while still maintaining its operational benefits.

Um, what operational benefits? The task force, multiple Senators, a federal judge and a variety of others have also noted that there are no benefits to the program. None have been shown.

Either way this is just more fluff from the intelligence community. They'll throw some bones to people, pretending to agree to meaningless modifications while fighting hard against any real change to the program. And pay attention, because you can bet that within any change they'll sneak in some other change that undermines it all anyway.

Filed Under: bulk metadata collection, metadata, nsa, section 215, surveillance

Ruling In Favor Of NSA's Program Relied On Claims In 9/11 Report That Aren't Actually In That Report

from the judicial-misconduct dept

The more people look at the ruling last week by Judge William Pauley saying that the NSA's bulk metadata collection is legal, the more perplexed they become. We noted multiple problems with the ruling last week, but at almost every turn is evidence that Judge Pauley not only came into the court with his decision already set, but that he took the government's claims at face value, even when they were flat-out factually incorrect -- and which could have been easily checked. We already noted that Pauley's argument that 9/11 could have been prevented with such a metadata collection had been widely debunked, but it's worse than that. Pauley's ruling cites the 9/11 Commission report for this particular argument. There's a big problem with that. The 9/11 Commission report doesn't even mention the story that Judge Pauley claims is in the report.

As we've discussed in the past, the NSA and its defenders keep pointing to the story of Khalid al-Mihdhar, a terrorist who was in San Diego and made a call to a known Al Qaeda safe house in Yemen. Except, as was widely reported, the intelligence community had collected all the necessary info and was even intercepting calls between the US and the safe house. The problems was that the CIA "lost" al-Mihdhar, didn't tell the FBI that he was in the US (even though it knew he'd received a Visa) and no one put him on a watch list. None of that would have changed with the metadata collection.

However, as Pro Publica notes, not only does Judge Pauley ignore all of this, he claims the 9/11 Commission report talks about the NSA being unable to "capture al-Mihdhar's telephone number identifier" -- but that's not true:

In fact, the 9/11 Commission report does not detail the NSA's intercepts of calls between al-Mihdhar and Yemen. As the executive director of the commission told us over the summer, "We could not, because the information was so highly classified publicly detail the nature of or limits on NSA monitoring of telephone or email communications.”

So when you have a judge using this as a key part of his ruling, and it appears that he simply did not read the report he's citing, but rather accepted the government's misrepresentation of the report, it should call into question what Judge Pauley was doing with this case. Others are noticing this same thing. The NY Times has an editorial, noting that Pauley's reasoning is "perplexing" in that it assumes that the government never breaks the law:

Judge Pauley's opinion is perplexing in its near-total acceptance of the claim by the government that it almost always acts in accordance with the law and quickly self-corrects when it does not. For example, Judge Pauley said the N.S.A.'s director, Gen. Keith Alexander, was being "crystal clear" when he responded to charges that the agency was mining data from phone calls by saying: "We're not authorized to do it. We aren't doing it."

That shows an alarming lack of skepticism, particularly in light of the testimony of James Clapper Jr., the director of national intelligence, who falsely told the Senate Intelligence Committee in March that the N.S.A. was not collecting any type of data at all on hundreds of millions of Americans.

It is also incorrect to say, as Judge Pauley does, that there is "no evidence" that the government has used the phone data for anything other than terrorism investigations. An inspector general's report in September revealed at least a dozen instances in which government employees used the databases for personal purposes.

Over at the New Yorker, Amy Davidson, goes even deeper in exploring the differences between Judge Pauley's ruling and Judge Leon's ruling (which found the NSA's metadata collection unconstitutional), and has pointed out multiple other "perplexing" elements in Pauley's ruling -- including the idea that the more completely the NSA spies on Americans, the more legal the program would be under his bizarre legal interpretation.

And yet if Pauley's opinion offers a single instruction for the N.S.A, it is this: go big. The more people whose data was swept up, the less this judge apparently thinks he has to say about it. Reading his fifty-four-page opinion, one wonders whether, if the intelligence community could only find a way to violate every single American's rights, and tell a story about how that protected them, he would look around and find that no one had been hurt. "This blunt tool only works because it collects everything," he writes.

And yet, "collect everything" is exactly what the 4th Amendment was designed to not allow. It was put in place to end the concept of general warrants for the collection of everything. It's this very concept of "collect everything" that is why Judge Leon noted that the "third party doctrine" as established in Smith v. Maryland makes no sense to apply to this bulk metadata collection.

Furthermore, Davidson also notes how Pauley uncritically accepts the feds' blatantly misleading spin that even with all the metadata collection only a very small number of people are spied upon. Judge Leon actually breaks it down and does the math, while Pauley doesn't bother:

The contrast can be seen in the two judges' responses to the way the government queries its database of phone records—those of almost every American. It starts with a "seed"—maybe a phone number of someone it suspects (and only suspects) is connected to a foreign terrorist group. It then makes three "hops": looks at all the numbers that the seed number has called or been called by, each number that those have been connected to, and each that those have been connected to. Leon does some calculations and sees that the number of phone numbers gets big very quickly (if you call a hundred friends, and they each call a hundred friends…). They also get attenuated: he cites the example of a suspect calling a pizza place, and the way every other pizza orderer is then inveigled. (I wrote about this “Domino's hypothetical” when Judge Leon's ruling was issued.) But just as interesting was Leon's response to the government's note that it has done this with three hundred seeds, yielding a number of American phone records “substantially larger than 300, but is still a very small percentage of the total volume of metadata records.”

The first part of this assertion is a glaring understatement, while the second part is virtually meaningless when placed in context…. It belabors the obvious to note that even a few million phone numbers is “a very small percentage of the total volume of metadata records” if the Government has collected metadata records on hundreds of millions of phone numbers.

Pauley, looking at the same statement, repeats it primly and uncritically twice: “only a ‘very small percentage of metadata records…’ ” He is just relieved that terrorists, or those connected to them even by “filaments,” might be found. (Last week, a Presidential review panel found that the program was not, in fact, all that useful.)

So there are huge problems with Pauley's decision. Not only does he quote a report that doesn't say what he claims it says, he further supports his argument by accepting a claim that another judge quickly showed to be clearly false just by doing some simple math. So far, we've got Judge Pauley failing to actually read or do math but simply accepting the government's claims of what the report and the math say, when anyone who's actually looked at either know the government is not being honest.

You would think that a judge would actually review the source material, rather than accept one party's misrepresentations. Unfortunately, Judge Pauley appears to have failed in his job to do the most basic checking of what he was told. And, because of that, we now have a horrible ruling on the books.

Filed Under: 9/11 commission, bulk metadata collection, khalid al-mihdhar, nsa, patriot act, section 215, surveillance, william pauley

Former CIA Boss, Task Force Member Says Even Though Metadata Collection Hasn't Been Useful, It Should Be Expanded

from the huh? dept

We've pointed out that one of the big surprises in the White House's task force proposals on NSA reform, was that the task force was pretty clear that the NSA had absolutely nothing to support the claims that the Section 215 (of the PATRIOT Act) bulk metadata collection had been even remotely helpful. Multiple members of the task force have discussed how shocked they were to find the lack of any "there" there. As we noted, law professor Geoffrey Stone expressed his shock to NBC:

“It was, ‘Huh, hello? What are we doing here?’” said Geoffrey Stone, a University of Chicago law professor, in an interview with NBC News. “The results were very thin.”

While Stone said the mass collection of telephone call records was a “logical program” from the NSA’s perspective, one question the White House panel was seeking to answer was whether it had actually stopped “any [terror attacks] that might have been really big.”

“We found none,” said Stone.

Meanwhile, Richard Clarke, former anti-terrorist czar to multiple presidents, expressed similar surprise in an interview with On The Media. When asked about that program, he noted that the task force had been given security clearance to go through all of the data and all of the cases where Section 215 data was used, and:

"we came to the conclusion it was not necessary in any case where it was used."

Throughout all of this, I'd been kind of curious to hear where task force panel member Michael Morell came down on all of this. He was the most suspect member of the task force, having been the acting director of the CIA until just a little while before the task force was put together. In other words, he was an ultimate intelligence community insider, and I kind of wondered if he had been a dissenting voice on some of this, overruled by the others.

Well, Morell is now speaking out, and while it's not clear if he was overruled, he is trying very, very hard to spin the proposals and findings over Section 215 into something very different, almost directly in contrast with the statements from Stone and Clarke. Specifically, he is arguing that even though the bulk data collection has been useless he's sure it could be useful in the future if allowed to continue. Actually, he goes beyond that, saying that what would be even more useful is if they added back bulk metadata collection around email, the program that had been stopped back in 2011, as even the NSA itself had admitted it had little to no value. But Morell supports them both, because he thinks that maybe it'll be helpful in the future.

"I would argue actually that the email data is probably more valuable than the telephony data," Morell told National Journal in a telephone interview. "You can bet that the last thing a smart terrorist is going to do right now is call someone in the United States."

Morell also said that while he agreed with the report's conclusion that the telephone data program, conducted under Section 215 of the USA Patriot Act, made "only a modest contribution to the nation's security" so far, it should be continued under the new safeguards recommended by the panel. "I would argue that what effectiveness we have seen to date is totally irrelevant to how effective it might be in the future," he said. "This program, 215, has the ability to stop the next 9/11, and if you added emails in there it would make it even more effective. Had it been in place in 2000 and 2001, I think that probably 9/11 would not have happened."

This is ridiculous on multiple levels. The idea that more data collection would have stopped 9/11 has already been thoroughly debunked by Michael German, who went through the 9/11 Commission report, showing that the intelligence community actually had already collected more than enough info to discover the plot -- they just failed to do anything with the information. And, in fact, that's a key part of the problem: adding more data to the pile actually makes it harder to understand that data. This is why it's silly for NSA defenders to keep talking about "needles and hay stacks." The point of the needle and the haystack is that the more hay you have, the harder it is to find the needle.

Furthermore, it takes some kind of logic to argue that a program that's been in existence for years, with not a single success to show for it, should be kept up (and expanded) just because it might be useful somehow in the future. Elsewhere, Morell faithfully repeated the NSA's other big talking point about how none of what it's doing is "spying on Americans."

“I think that is a perception that's somehow out there. It is not focused on any single American. It is not reading the content of your phone calls or my phone calls or anybody else's phone calls. It is focused on this metadata for one purpose only and that is to make sure that foreign terrorists aren't in contact with anybody in the United States,” said Michael Morell on CBS’ “Face the Nation.”

While some people do think that (and, for what it's worth, it does appear that the NSA is collecting such content on many people, including Americans, through other programs), people are just as concerned about the metadata collection -- as has been clearly explained many times over. Besides, the report that Morell himself was a part of seems to indicate the quite reasonable concern that this data could be seriously abused.

It's interesting to see Morell try to spin his own report, but the words of his fellow panelists show what's really going on. Section 215 hasn't done anything useful. Morell's idea of expanding it and claiming it might do something useful in the future is based on nothing other than the general desire of the intelligence community, which Morell is a part of, to always suck up as much information as possible, no matter what the consequences or harm it may cause.

Filed Under: bulk metadata collection, cia, geoffrey stone, intelligence, michael morell, nsa, richard clarke, section 215, task force

Surprise: White House's Intelligence Review Task Force Suggestions Much More Than Just Cosmetic

from the wasn't-expecting-that dept

Given the earlier reports suggesting that the "independent" task force set up to review the NSA's activities had come back with a list of suggestions for changes that were mostly cosmetic, rather than substantive, it was a bit of a surprise to see the White House come out today to say that those earlier reports were incorrect and that they were releasing the report in full today (way ahead of schedule). And, now the report is out. After giving it a single read (300+ pages), it is a lot more substantial than many of us expected -- so much so that even the NSA's biggest apologists are "shocked" at how "awkward" it must be for the White House to claim to set up an independent task force, and then have it come back with recommendations that are quite different than what the White House itself has been proposing. It's as if the NSA's apologists assumed this was long in the bag, and that the task force itself was always a joke. Turns out that's not the case.

That's not to say this is perfect. There are significant areas where it seems the recommendations could and should go much further. But it does argue for reining in significant amounts of surveillance, providing much greater oversight, protecting non-US persons' privacy as well as US persons, and a variety of other very real changes. It also (as Judge Leon did on Monday) says that there's no real evidence the bulk collection of metadata was useful in any real way... but, oddly, then allows the program to continue, but in a different manner: having the telcos retain the data in case it's later needed (along with relevant court approvals) rather than just keeping the whole database to troll through. There are all sorts of problems with mandatory data retention as well, but we'll talk about that eventually.

It recommends putting significant restrictions on the ability of the FISA court to force companies to disclose private information, and also includes restrictions on the regularly abused "national security letters" process, which the FBI frequently uses to get information without a warrant. It supports much greater transparency about the programs, including allowing companies to reveal details of the number of requests they received for information. And, as mentioned above, they don't just stop at protecting the privacy of US persons, but non-US as well, including that any spying on non-US persons needs to have a direct national security purpose, and cannot be based on political or religious views alone. It also recommends against revealing information about non-US persons, such as the reported plans to leak the porn viewing habits of certain non-terrorists with views with which the American government disagreed.

The report clearly notes the drift by the NSA away from its core mission of national security, and suggests that various actions need to get back to having a specific national security reason. It also argues for splitting up parts of the NSA by designating the NSA itself as only covering foreign intelligence, moving its "Information Assurance Directorate" and (as we'd discussed last week) finally separating US Cyber Command from the NSA (something the White House has apparently already rejected). The report highlights the need for greater privacy assurances, including reconstituting the Civil Liberties Oversight Board into the Civil Liberties and Privacy Protection Board -- and granting it much more power for oversight, while also placing a Special Assistant to the President for Privacy in the executive branch. As many had expected, it also recommends making the FISA court a more adversarial process (something the White House has suggested it may be open to).

The report also recommends that the NSA be blocked from trying to undermine or weaken encryption standards, and actually says that the White House should support greater use of encryption across the board.

There are recommendations to better lock down information within the intelligence community to prevent another Snowden from walking off with documents... but also more avenues for whistleblowers, including having them go to that newly constituted privacy board.

It's final recommendation is one that's most telling, and one of the issues that's most confused me throughout this process. It suggests that the government start actually doing a "cost-benefit" analysis of the various security efforts it engages in. As we've noted, the incredible thing about the revealed programs is that they provided very little benefit, but the costs were astounding, both in managing the programs themselves, but, more importantly, in the impact economically and diplomatically of having those programs revealed.

Now, this report is just a set of proposals, which the White House can reject. In fact, it's likely that many will be rejected or ignored. But, to actually have this review board -- which many expected to be nothing more than yet another rubber stamp -- issue something this detailed, comprehensive... and which really does recommend some very real changes, is a pleasant surprise.

Your move, Mr. President.

Filed Under: bulk metadata collection, fisa court, fisc, intelligence, nsa, nsa surveillance, review, section 215, surveillance, task force

Wall Street Journal Calls Snowden A Sociopath; Argues For Even Less NSA Oversight

from the the-nsa-journal dept

It's no surprise that the editorial board of the Wall Street Journal would be apologists for the surveillance state, but even they have reached new depths in discussing the recommendations to President Obama from his NSA review panel/task force. As we had already pointed out, the actual recommended changes appear to be entirely cosmetic, and yet the WSJ seems to think that the NSA should have free rein to spy on anyone and everything. It's as if the WSJ editorial board has never heard of the 4th Amendment, and has simply no clue how much damage the NSA has done to the US economy. You would think, given the WSJ's reputation as being pro-big business, that it would concern them that businesses appear to be losing a ton of money overseas as people don't want to do business with American companies any more over the NSA revelations.

But, no, the editorial is so full of ignorance and wrongness that it almost feels like a parody. It refers to Ed Snowden as a "sociopath with stolen documents" for example:

The report lands at a bad political moment, with tea party Republicans and anti-antiterror Democrats smelling opportunity and sociopaths with stolen documents campaigning to harm U.S. national security.

I'm curious how they judge him to be a sociopath. Considering the ruling yesterday by Judge Leon, which the WSJ acknowledges in the very next sentence, it certainly looks like Snowden revealed to the public an unconstitutional effort by the US government to violate our privacy.

The editorial goes on to insist that any rollback of the bulk metadata program would have horrendous consequences... based on nothing. The editorial claims that a moderate change to the bulk metadata collection (requiring telcos to hold onto the data, rather than letting the NSA get it up front) would "effectively cripple" the NSA's ability to analyze these records.

The problem is that metadata is only useful if it is pooled, formatted and organized so it can be searched quickly and accurately. Intelligence is not an on-demand technology but an ongoing, painstaking process in preparation for questions that no one can know until U.S. spooks need immediate answers.

But that's both wrong and bullshit at the same time. First, that paragraph could be used to argue against any limit on surveillance. It goes completely against the very concept of the 4th Amendment. Hell, attaching recording devices and cameras to every single human being, and piping that info directly into the NSA (and no, we're not quite at that stage yet) would also help the NSA search for info quickly -- but it's also insane. Why would the WSJ support an insane concept?

More importantly, despite having many opportunities to do so, the NSA has yet to show any evidence that the bulk metadata collection was necessary to stop any terror attacks. Multiple Senators have already said that there is no such evidence, and in Judge Leon's ruling he explicitly notes that, despite the opportunity to do so, the US government did not present a single shred of evidence that this program has been necessary. Furthermore, the claims that it's necessary to have the data in hand (as opposed to held by the telcos, as this proposal would allow) is again not supported by the actual evidence. Judge Leon clearly pointed out that in the examples given of where the metadata was used, there was no necessary "urgency" that would have prevented reviewing that information were it held elsewhere.

The editorial board also apparently has a serious problem with the idea that there should be an adversarial process within the FISA court. In fact, it goes even further in arguing that the FISA court itself is a problem, and that the NSA shouldn't even be accountable to the judicial branch, but to the executive branch alone. And then it mocks the idea of an adversarial process by calling it a "roving ACLU corps", because protecting civil liberties is apparently not a good thing according to the WSJ.

The FISC judges are not now operating as a judiciary but instead fill a quasi-legal management role over NSA. This dilutes accountability for the political branches, but the Obama panel wants to go further and appoint a public advocate whose job is to argue against the NSA as in a public lawsuit.

This roving ACLU corps would second-guess the agency and presumably urge the judges to reject or limit NSA requests.

Even by the ridiculously low standards of the WSJ, this editorial is simply ludicrous. It bows down before the surveillance state, wishing for even fewer protections for our civil liberties, and pretends that if only the government could spy on us even more, the world would be a much better place. And it throws in that gratuitous attack on Snowden's mental faculties just as a bonus. Because, when defending the surveillance state, apparently if you can't argue with logic, ad hominems are the way to go.

Filed Under: bulk metadata collection, ed snowden, editorial board, nsa, surveillance, wall street journal