James Clapper Says 'Peace Of Mind' Trumps Effectiveness In Evaluating NSA Surveillance

from the do-these-guys-listen-to-themselves? dept

In yet another Congressional hearing concerning the intelligence community last week, Senator Patrick Leahy finally got the heads of the intelligence community to admit what many of us had been pointing out for a while: that there's no evidence that the key NSA programs up for debate have ever actually been necessary in stopping terrorist attacks. While NSA supporters like Congressional Rep. Joe Heck have flat out lied, in claiming that Section 215 of the Patriot Act had thwarted "54 terrorist plots," during this particular testimony, Leahy got James Clapper and Keith Alexander to admit that, at best, the program had really only been involved in stopping one "terrorist event" in the US, and that "event" wasn't a plot, but rather a cab driver in San Diego sending some money to a terrorist group in Somalia.

But the really incredible part was that confessed liar to Congress, Director of National Intelligence, James Clapper, tried to defend all this, arguing that figuring out whether or not these surveillance programs were actually necessary or useful in stopping terrorist plots was the wrong metric. Instead, he made up his own metric. The "peace of mind" metric:

There's another metric I would use; let's call it the "peace of mind metric". In the case of the Boston Marathon bomber, we were able to use these tools to determine whether there was, or was not, a subsequent plot in NYC.

Of course, we've already discussed how utterly ridiculous this argument is when President Obama himself used the "post-Boston" lack of other plots as support for NSA surveillance. It's quite incredible when you argue that the absence of additional attacks that never existed in the first place is somehow a "victory" for surveillance efforts.

But, really, this "peace of mind" metric is worth exploring, because it's basically the same thing as "the dictator's creed." Clapper's argument is that he can ignore the Constitution, because it might make you feel safer. As Julian Sanchez argued when Clapper made this statement, under the "peace of mind metric" because of the lack of additional threats, it automatically means that every innocent person's records are "relevant," since they help prove the lack of an additional threat. Just think for a second how insane that is. Sanchez takes the analogy further:

Let's try it for warrants: There's always probable cause to believe a search will produce evidence of guilt OR reassure us of innocence.

The more you think about the insidious nature of such a metric, the worse and worse you realize it is. If the government considers evidence of innocence to be relevant and necessary for "peace of mind" then there is no 4th Amendment any more and there is no privacy. At all. The government, using this made up metric, can argue that any search is warranted because it's "just making sure you're not a threat."

That's not the standard. That's not the metric. It's completely unconstitutional.

So, again, we have to ask: how the hell is James Clapper still employed as the Director of National Intelligence?

Filed Under: james clapper, keith alexander, nsa, nsa surveillance, peace of mind, relevance

Why The DOJ's Legal Defense That 'All' Info May Be 'Relevant' For The NSA Is Legally Hogwash

from the just-not-true dept

Last week, we noted the ridiculousness of the DOJ's attempted defense of the government's use of Section 215 of the Patriot Act to scoop up all phone records on every call, claiming a very twisted definition of "relevant" among other things. A variety of folks have been picking apart some of the claims in that analysis, and Orin Kerr has detailed some specific problems with the case law that the DOJ uses to back up its definition of "relevance." If this were an actual court document, it would be easy to counter, since it seems clear that the DOJ didn't use the most appropriate citations, twisted the citations it did use to mean more than they really do, and (most importantly) ignored much more relevant (and I mean that in the English sense, rather than the DOJ sense) citations and precedents. Kerr points out that the DOJ played down that the main precedents they use have specific conditions concerning necessity and context, but further notes how other cases appear to be much more germane to the topic:

A case that comes to mind is In re Grand Jury Subpoena Duces Tecum Dated Nov. 15, 1993, 846 F.Supp. 11 (S.D.N.Y. 1994) (Mukasey, J.). In that case, then-Judge (later Attorney General) Michael Mukasey quashed a grand jury subpoena that sought all computers and all electronic storage devices possessed by the target corporation. The subpoena failed Rule 17′s “relevance” standard because the computers contained so much irrelevant material intermingled with the data that was relevant to the investigation:

Government counsel have conceded on behalf of the grand jury that the subpoena demands irrelevant documents. Moreover, the government has acknowledged that a “key word” search of the information stored on the devices would reveal “which of the documents are likely to be relevant to the grand jury’s investigation.” Id. at 3. It follows that a subpoena demanding documents containing specified key words would identify relevant documents without requiring the production of irrelevant documents. To the extent the grand jury has reason to suspect that subpoenaed documents are being withheld, a court-appointed expert could search the hard drives and floppy disks.

“[B]ecause the subpoena at issue unnecessarily demands documents that are irrelevant to the grand jury inquiry,” Mukasey concluded, “it is unreasonably broad under Federal Rule of Criminal Procedure 17(c).”

Mukasey’s decision seems to cut against the Administration’s position. It blocks a subpoena for all the electronically-stored information because lots of the information to be obtained is not relevant even thought some of it is. Plus, the opinion is written by a recent Attorney General of the United States, which should give it extra prominence. And it’s a lot more significant a precedent than are Fourth Amendment cases involving warrants to search computers: Warrants do not apply the relevance doctrine while subpoenas do, so it seems odd to discuss the cases about computer warrants but not the cases on computer subpoenas. But the “white paper” doesn’t mention this case, so we don’t know if the Administration has a response to it– or if the FISC was ever alerted to it.

I'd suggest reading the entire thing, because it also delves deeply into why the cases that the government does cite don't really support its claims.

But, the real issue here is that this is the kind of thing you get when you have a secret process with a secret court and secret rulings -- with no adversarial hearings at all. It allows one side -- in this case the DOJ -- to make incredibly weak arguments based on distorting existing case law and completely ignoring much more relevant case law, and then getting away with it because no one's there to point out how misleading the defense is. No wonder the DOJ has fought for so many years to avoid having to reveal the legal interpretation of Section 215 that explains the secret interpretation for why 215 allows the scooping up of all phone records. Someone must realize that it would immediately be shown to be lacking. But, when you know that no one is seriously reviewing these things, and those who have the most interest in actually protecting our civil liberties are kept in the dark, you can get away with incredibly sloppy legal defenses. And it appears that's exactly what the DOJ did here.

And it's just all of our privacy that was trampled on in the process.

Filed Under: metadata, nsa, nsa surveillance, orin kerr, patriot act, privacy, relevance, relevant, section 215

NSA-To-English Dictionary: I Don't Think These Words Mean What You Think They Do

from the if-you-can-redefine-the-language dept

For the last few weeks I'd been meaning to write up a "dictionary" of how the NSA translates certain words, completely different from the way any other English speaker does, in order to argue that what it does with its surveillance programs is "legal" under the law. I hadn't gotten around to it because every time I started, it seemed like there was more breaking news. Thankfully Jameel Jaffer and Brett Max Kaufman from the ACLU beat me to it, and put together a fantastic NSA lexicon, which highlights how the NSA has simply changed the meaning of many basic English words in order to argue that their efforts are, in fact, legal and above board. You can and should read the full and detailed explanations that Jaffer and Kaufman have put together for each word, but I'm going to take their same list and simplify it down a little. In bold is the word, and after it is what the NSA thinks it means.

• Surveillance: When we actually access full content of your calls and emails, but not when we access all the data about who you talk to, where you are and what you do.
• Collect: When we run a search on data we collected er... "stored for safe keeping."
• Relevant: Everything. It might become relevant in the future, thus it's relevant today.
• Targeted: As long as we're collecting the info for an investigation that involves a "target" then any info is "targeted" even if that info has nothing to do with the "target."
• Incidental: Everything that we collect... er... store that may become "relevant" at some point but isn't now even though it's "targeted." In short: everything.
• Inadvertent: Stuff we did on purpose on a massive scale that looks bad when exposed publicly.
• Minimize: A term we use to pretend that we delete information on Americans, but which has many exceptions, including if you encrypted your communications or if we have a sneaking suspicion that you're 51% foreign based on a hunch.
• No: When said to Congress in response to questions about whether we collect data on millions of Americans, this means "fuck you."

I would imagine there are a few more words that will need to be added at some point.

Filed Under: collect, definitions, incidental, laws, legality, minimization, nsa surveillance, relevance, surveillance, targeted

Google's Childish Response To Microsoft Using Google To Increase Bing Relevance

from the get-over-it dept

It's inevitable as a company gets bigger and older that rather than just competing in the market, it starts attacking competitors and accusing them of doing something "wrong." It's too bad that Google appears to have reached this stage. There have been plenty of stories lately about Google's decreasing relevance and how its search results have been getting worse. There are plenty of ways to respond to this and improving search quality should be the main focus. But it looks like Google has, instead, decided to call out competitors. Specifically, Google set up an elaborate and pointless "sting operation," which appears to show that Microsoft uses Google results as a part of its overall relevance algorithm. Basically, it looks like for users who have the Bing toolbar installed, Microsoft aggregates some search information, perhaps including Google results, and weighs them (only partially) into its own algorithm.

This seems like a perfectly reasonable thing to do. Google's search results are public and as an established player in the market, almost every comparison of alternative search engines, including Bing, compares it to Google. So, making use of Google data to improve its own rankings seems like a rather smart move.

Remember, too, that Google's own search algorithm is based on viewing what people are doing online and coming up with a ranking based on that. How is that any different than Microsoft viewing a variety of information online -- including Google's own search rankings -- and using that as the basis of its own rankings? But instead of recognizing that this is all perfectly reasonable, Google starts acting like the RIAA, accusing Microsoft of "cheating" and doing something that is potentially illegal. It even pops out this line from Amit Singhal, a Google Fellow who apparently oversees Google's search ranking algorithm.

"I've got no problem with a competitor developing an innovative algorithm. But copying is not innovation, in my book."

As if Google hasn't copied the work of others in the past? The very basis for the original Page Rank was "copied" from Jon Kleinberg's research and then built upon that work. It was not a direct copy, just as Microsoft's search results are not a direct copy. For Google to attack a competitor for using open information on the web -- the same way it does -- seems like the height of hypocrisy. It's fine for Google to crawl and index whatever sites it wants in order to set up its ranking algorithms, but the second someone looks at Google's own rankings as part of their own determination, suddenly its "cheating"?

This seems like the latest in a series of indications that Google has moved past the innovation stage into the "protecting its turf" stage. That would be a shame.

Filed Under: algorithms, bing, relevance, search
Companies: google, microsoft

The Next Battle: Enabling Information To Find You -- Or Why Yahoo/Microsoft Is A Distraction

from the helping-information-find-you dept

I have to admit, I wasn't going to write anything at all about the Yahoo/Microsoft search deal. It honestly seemed pretty pointless -- much bluster about nothing at all of importance. After talking it over with an editor at Forbes, however, I agreed to write up an op-ed for them about why the deal is misguided, and I wanted to expand on one part of that here. I just don't think there's very much interesting in fighting the last battle over "search" rather than looking at where things are headed. And, on that front, I noted:

People are discovering that information finds them, rather than them going in search of information. Search already works. The next interesting challenge is in improving the way information finds you, rather than the way you find information.

That is the key point that innovators in the internet space are starting to figure out. Information is much more powerful when it finds you (for example, when it's passed along by someone you trust). But that information doesn't just find you by itself. The internet helps, in making it easy to pass along a link or some text -- or to share/embed/etc. some content. But the tools for sharing information need to improve drastically, and that's where the next excitement will come from. It's in enabling relevant information to find you rather than the other way around. And, Yahoo/Microsoft has nothing to do with that at all.

Separately, this is also why I think sites that are trying to lock up content behind paywalls or limited access are making things worse. They're doing the opposite of where the internet is moving. They're making it harder for their information to find you, and they'll discover that this will lock them out of much of the opportunity.

Filed Under: information, journalism, relevance, search
Companies: microsoft, yahoo

Is The AP Even Relevant Any More?

from the do-you-need-it? dept

The original purpose of the Associated Press was to pool together resources of various newspapers in order to be able to cover and share reporting on different events around the world. Otherwise, it simply wasn't practical for every local newspaper to have a Washington DC bureau or a London bureau or a Moscow bureau or whatever other location needed news reporting. And then, the idea was that by collectively teaming up, each of the local newspapers could reprint the works from others (and from the AP's own reporters) and have a complete newspaper on their own. But does that even make any sense in an internet era? The NewsFuturist blog notes that the internet has basically done away with the two key reasons that explain the AP's very existence, which probably explains why they're trying out questionable ideas designed to hold back the power of the internet, rather than embracing it. Could there be a place for a modern Associated Press? Absolutely. But its core purpose needs to be entirely different from what it's been for most of the AP's history. Each newspaper doesn't need to copy the same report from the White House briefing room. Everyone can just link to different reports (including more than just one to give multiple perspectives). The whole reason for the AP's very charter makes little sense these days, and it's time for the AP to come to terms with that, and adapt... or go away.

Filed Under: internet, journalism, relevance
Companies: associated press