An
undated handout photo of the National Security Agency campus in Fort
Meade, Md. The National Security Agency has secretly circumvented or
cracked much of the digital scrambling that protects global commerce,
e-mails, phone calls, medical records and Web searches, according to
newly disclosed documents. (Photo: U.S. Government via The New York
Times) The debate Edward Snowden envisioned when he
revealed the extent of National Security Agency (NSA) spying on
Americans has taken a bad turn.
Instead of a careful examination of what
the NSA does, the legality of its actions, what risks it takes for what
gains, and how effective the agency has been in its stated mission of
protecting Americans, we increasingly have
government officials or
retired versions of the same
demanding --
quite literally -- Snowden’s head and engaging in the usual fear-mongering over 9/11. They have been aided by a chorus of pundits, columnists, and present as well as former
officials offering bumper-sticker slogans like "If you have nothing to
hide, you have nothing to fear," all the while claiming our freedom is
in direct conflict with our security.
It’s time to face these arguments directly. So here are ten myths
about NSA surveillance that need debunking.Let's sort them out.
1) NSA surveillance is legal.
There’s a catch in the issue of legality and the NSA. Few of us can
know just what the law is. What happens to you if you shoplift from a
store or murder someone in a bar fight? The consequences of such actions
are clearly codified and you can look them up. Is it legal to park over
there? The rules are on a sign posted right where you'd like to pull
in. If a cop tickets you wrongly, you can go to court and use that sign
to defend yourself. Yet almost all of the applicable “law,” when it
comes to the National Security Agency and its surveillance practices,
was
secret until Edward Snowden began releasing his documents. Secret
interpretations
of the shady Patriot Act made in a secret court applied. The fact that
an unknown number of legal memos and interpretations of that secret law
(themselves still
classified) are operative means that we really don’t know what is legal anymore.
The panel of experts appointed by President Obama to review the
Snowden revelations and the NSA’s actions had a peek into the issue of
“legality” and promptly raised
serious questions -- as did
one of the two federal courts that recently ruled on some aspects of the
issue.
If the Obama administration and the Justice Department really believe
that all the NSA's activities will be proven legal in a court of law,
why not allow them to be tested openly and unambiguously in public?
After all, if you've done nothing illegal, then there’s nothing to hide.
When Amnesty International first tried to bring such a
question
before the courts, the case was denied because that organization
couldn’t prove that it had been subject to monitoring -- that was a
secret, of course! -- and so was denied standing even to bring the suit.
Snowden's revelations seem to have changed all that. The documents made
public have given “standing” to a staggering
array
of individuals, organizations, and countries. For the first time in 12
years, they pave the way for the issue to come to its proper venue in
front of the Supremes. Openly. Publicly.
2) If I’ve done nothing wrong, I have nothing to hide. So why should I care about any of this?
Keep in mind that the definition of "wrong" can quickly change. And
if you don't know what the actual law really is, how can you say that
you know you have done nothing wrong? If you've got nothing to hide,
post your social security number and credit card information online,
leave your curtains open at night, and see how that sits with you.
In a larger sense, however, the very idea that “I've got nothing to hide” is a distraction.
The Fourth Amendment
guarantees a right to privacy. The Constitution does not ask if you
want or need that right; it grants it to everyone, and demands that the
government interfere with it only under specific circumstances.
The Fourth Amendment came into being because of the British use of
general warrants in the colonial era. Under that “law,” they could
legally search whole groups of people, their possessions, and their
papers without having to justify searching any specific person. Called “
writs of assistance,”
these general warrants allowed the King's agents to search anyone,
anytime, regardless of whether they suspected that person of a crime.
The writs were most often used by Royal Customs agents (an irony
perhaps, given the draconian powers now granted to U.S. Customs agents
to
search anyone's personal electronics, including those of American citizens, at the border).
The U.S. fought a revolution, and James Madison wrote the Fourth
Amendment, against broad government authority to search. Whether you
personally do or do not have anything to hide is not even a question
that should be on the table. It should be almost un-American to ask it.
3) But the media says the NSA only collects my "phone metadata," so I'm safe.
My older, conservative neighbor quickly insisted that collecting this metadata thing she had heard about on Fox was
necessary
to protect her from all the terrorists out here in suburbia. She then
vehemently disagreed that it was okay for President Obama to know whom
she called and when, from where to where and for how long, or for him to
know who those people called and when, and so forth.
Think of metadata
as the index to all the content the NSA can sweep up. That agency is
able to record, say, 24 hours worth of Verizon phone calls. Its
operatives can then easily locate any particular call within that huge
chunk of metadata. Such basic information can also provide geo-location
information to track physical movements. Metadata showing that you
called your doctor, followed by metadata about which lab department she
called next, followed by a trip to the pharmacy might fall into the
“something you want to hide” category. (Actually, using metadata to
learn about your medical history may not be even necessary. An
exception
to the privacy policy of one of America's larger HMOs, Kaiser
Permanente, states: "We may also disclose your PHI [personal health
information] to authorized federal officials as necessary for national
security and intelligence activities." BlueCross BlueShield has a
similar exception as do
regional medical outfits.)
Metadata is important. Ever play the game “Six Degrees of Separation”?
Silly as it seems, almost
anyone is indeed just six hops away from
anyone else. You know a guy in Detroit who has a friend in California
who has a sister who cuts hair whose client is Kevin Bacon's high school
classmate's cousin. You and that cousin are connected. Publicly
available information tells us that the NSA traces
“three hops”
from a target: A knows B, C, and D. But once C morphs into a target,
C's three hops mean the NSA can poke into E, F, and G, and so forth. The
Guardian calculated
that if A has 50 friends, the number of targets generated under the
three-hop rule would be over 1.3 million people. I really do hope that
you (and everyone you know, and they know) have nothing to hide.
4) Aren’t there are already checks and balances in our system to protect us against NSA overreach?
In recent years, the government has treated the king of all checks
and balances, the Constitution, like a used Kleenex. The secret Foreign
Intelligence and Surveillance Court (FISA) was set up to provide
judicial
oversight
in a classified setting to the intelligence community. Theoretically,
the government is required to make a compelling case for the issuance of
orders authorizing electronic and other surveillance, physical
searches, and compelled production of business records. Either the
government is very good at making its case, or the court has become a
rubber stamp: that secret FISA court approved all
1,789 requests submitted to it in 2012.
The Patriot Act elevated a once rarely used tool, the
National
Security Letter (NSL), into the mainstream of government practice.
National Security Letters are an extraordinary search procedure that
gives the FBI the power to compel the disclosure of customer records
held by banks, telephone companies, Internet service providers, public
libraries, and others. These entities are prohibited, or "gagged," from
telling anyone about their receipt of the NSL. Though the Justice
Department itself cited
abuse of the letters by the FBI in 2008, in
2012 the FBI used 15,229
National Security Letters to gather information on Americans. NSLs do
not require judicial approval and the built-in gag orders prevent anyone
from seeking judicial relief; indeed, most people will never even know
that they were the subject of an NSL. And at the moment, the Department
of Justice is trying to
keep classified
an 86-page court opinion that determined the government violated the
spirit of federal surveillance laws and engaged in unconstitutional
spying.
Director of National Intelligence James Clapper directly
lied to that check-and-balance branch of the government, Congress, in a public session. (He later termed his response the “
least untruthful”
answer.) And we wouldn’t even know that he lied, or much of anything
else about the NSA's surveillance activities here or globally, if it
weren’t for one man's courage in exposing them. The government had kept
it all from us for 12 years and never showed the slightest sign of
reconsidering any part of that policy. Without Snowden, we would not
even know what needs checking and balancing.
5) But I trust Obama (Bush, the next president) on this.
I can guess what your opinions are of the people that run the
Transportation Safety Administration or the Internal Revenue Service. On
what basis, then, can you conclude that the NSA or any other part of
the government is any more trustworthy or competent, or any less petty?
While the government does not trust you to know what it does, thanks
again to the Snowden revelations, we know that the NSA trusts some
foreign governments more than you.
The NSA is already sharing at least
some data about Americans with, at a minimum, British intelligence and the Israelis. And who knows how those governments use it or whom they share it with downstream?
Do you really trust all of them all the time to never make mistakes
or act on personal grudges or political biases? History is clear enough
on what former FBI director J. Edgar Hoover did with the
personal information
he was able to collect on presidents, the Supreme Court, Congressional
representatives, Martin Luther King, and others in the Civil Rights
movement. Among other things, he used his secretly obtained information
to out
gay members of government. As for the NSA, so far it hasn’t even been willing to
answer the question of whether it’s been spying on, surveilling, or gathering metadata on members of Congress.
Still, let's assume that Obama or the next president or the one after
that will never do anything bad with your personal data. Once
collected, however, that data potentially exists forever. If the NSA is
to be believed, it claims to hold metadata for only five years, though
it can keep copies of intercepted communications from or about U.S.
citizens
indefinitely if the material contains “significant intelligence” or “evidence” of crimes. The NSA can hold on to your
encrypted communications as long as is needed to break the encryption. The NSA can also keep
indefinitely
any information gathered for “cryptanalytic, traffic analysis, or
signal exploitation purposes.” Data held is available to whoever can
access it in the future, using whatever technologies come to exist.
Trusting anyone with such power is foolish. And as for data security, we
know of at least one recent instance when more than 1.7 million
highly-classified NSA documents just walked out the door.
6) But don't private companies like Facebook already have access to and share a lot of my personal data? So what's wrong with the government having it, too?
While private companies can pass your private information to the
government, either willingly or under secret compulsion, there still are
some important differences.
At least in theory, it’s your choice to give data to private
companies. You could stop using Facebook, after all. You can’t, however,
opt out of the NSA. About the worst that Facebook and the others
directly want is to take your money and send you spam. While certainly
no angel, Facebook can’t arrest you, put you on the No-Fly list with no
recourse, seize your property or put you under investigation, audit your
finances, imprison you without trial as a terrorist, or order you
assassinated by drone. Facebook can't suspend your civil rights; the
government can. That is a big, big difference. And by the way, a
proposed solution
to the metadata collection problem -- having private companies, not the
NSA, hold the data -- is no solution at all. Data stored and available
to NSA analysts, wherever it is, is data stored and available to NSA
analysts.
7) All this surveillance is distasteful and maybe even illegal,
but isn’t it necessary to keep us safe? Isn’t it for our own good?
Haven’t times changed and shouldn’t we acknowledge that?
This isn’t a new argument; it’s Old Reliable. It was the argument
that Hoover, Senator Joseph McCarthy, and so many others made to justify
the particular acts they chose to endorse to protect us against
Communism. The 1976
Church Committee Report,
the first and only large-scale review of America's internal spy
networks, found that between 1953 and 1973 nearly a quarter of a million
first-class letters were opened and photographed in the United States
by the CIA. Like the NSA, it was at that time officially forbidden to
spy on Americans
domestically.
It nonetheless produced a computerized index of nearly one and one-half
million names. At least 130,000 first class letters were also opened
and photographed by the FBI between 1940 and 1966, all to keep us safe
and for our own good in changing times. I doubt many people now believe
any of that is what kept the Reds at bay.
The same argument was made about the necessity of domestic
surveillance during the Vietnam War. Again, from the
Church Report, we
learned that some 300,000 individuals were indexed in a CIA computer
system and that separate files were created on approximately 7,200
Americans and more than 100 domestic groups under the umbrella of
Operation MH/CHAOS,
designed to ferret out supposed foreign influence on the antiwar
movement. Intelligence files on more than 11,000 individuals and groups
were created by the
Internal Revenue Service between 1969 and 1973 and
tax investigations were started on the “basis of political rather than
tax criteria.” I doubt many people now believe any of that is what kept
the nation from descending into chaos.
The Constitution and the Bill of Rights have matured with our nation,
growing to end slavery, enhance the rights of women, and do away with
Jim Crow and other immoral laws. The United States survived two world
wars, the Cold War, and innumerable challenges without a massive,
all-inclusive destruction of civil rights. Any previous diversions --
Abraham Lincoln's
suspension
of habeas corpus during the Civil War is a favorite instance cited --
were short, specific, and reversed or overturned. The Founders created
the Bill of Rights to address, point-by-point, the abuses of power they
experienced under an oppressive British government. (Look up the
never-heard-from-again
Third Amendment.) A bunch of angry
jihadis, real and imagined, seems a poor reason to change that system.
8) Terrorists are everywhere and dangerous.
From 1776 to 2001 the United States did not experience a terror
attack anywhere close to the scale of 9/11; the worst terror attack
against the United States as of 9/10, the Oklahoma City bombing, claimed
168 lives compared to some
3,000
at the Twin Towers. Since 9/11 we have not had a comparable mass-scale
terror attack. No dirty bombs at the Super Bowl, no biochemical
nightmares, no suicide bombers in our shopping malls or theme parks.
There have been only about
20
domestic terror-related deaths since 9/11. Your chances as an American
of being killed by a terrorist (the figures are for the world, not just
inside the U.S.) are about
1 in 20 million.
The inevitable comparison shows the odds of being struck by lightning
at 1 in 5.5 million. You are, in other words, about four times more
likely to be struck by lightning than killed by a terrorist. Most of the
“terrorists” arrested in this country post-9/11 have been tragicomic fabrications
of the FBI. 9/11 was a one-off, an aberration, so unique that its
“success” stunned even Osama bin Laden. It was a single morning of
disaster and cannot be the justification for everything the government
wishes to do forever after.
9) We've stayed safe. Doesn't that just prove all the government efforts have worked?
No, that's called false causality. There simply is no evidence that it's true, and much
to the contrary.
It’s the same as believing government efforts have prevented Martian
attacks or wild lions in our bedrooms. For one thing,
we already know
that more NSA spying would not
have stopped 9/11; most of the needed information was already held by
the U.S. government and was simply not
properly shared or acted upon.
9/11 was a policy failure, not a matter of too-little snooping.
Today,
however, it remains
a straw-man justification for whatever the NSA wants
to do, a way of scaring you into accepting anything from the
desecration of the Fourth Amendment to taking off our shoes at airport
security. But the government uses this argument endlessly to promote
what it wants to do. Even the NSA's
talking points
recommend their own people say: “I much prefer to be here today
explaining these programs, than explaining another 9/11 event that we
were not able to prevent.”
At the same time, despite all this intrusion into our lives and the
obvious violations of the Fourth Amendment,
the system completely missed
the Boston bombers, two of the dumbest, least sophisticated bro
terrorists on the planet. Since 9/11, we have seen some
364,000
deaths in our schools, workplaces, and homes caused by privately owned
firearms, and none of the spying or surveillance identified any of the
killers in advance.
Maybe we should simply stop thinking about all this surveillance as a
matter of stopping terrorists and start thinking more about what it
means to have a metastasized
global surveillance system aimed at spying on us all, using a fake argument about the need for
100%
security in return for ever more minimal privacy.
So much has been
justified in these years -- torture, indefinite detention, the
Guantanamo penal colony, drone killings, wars, and the use of Special Operations forces as global assassination teams -- by some version of the so-called ticking time bomb
scenario. It’s worth getting it through our heads: there has never been
an actual ticking time bomb scenario. The bogeyman isn't real. There's
no monster hiding under your bed.
10) But doesn’t protecting America come first -- before anything?
What exactly are we protecting from what? If, instead of spending
trillions of dollars on spying and domestic surveillance, we had spent
that same money on repairing our infrastructure and improving our
schools, wouldn't we now have a safer, stronger America? Remember that
famously absurd Vietnam War
quote
from an American officer talking about brutal attack on Ben Tre, "It
became necessary to destroy the town to save it"? How can anyone say we
are protecting our liberty and freedom by taking it away?
case scheduled to be heard by the Supreme Court this week has managed
to stay out of the limelight, skirting political debate and media frenzy
for years despite its potentially devastating ramifications for unions
across the country.
