Thursday, May 18, 2006
Warm Fuzzy Thoughts about Wiretapping
I know, I know. The last few weeks, you've been desperately wondering where I've been, and when you weren't actively worried about that, you took some time to worry about the new wiretapping program that the NSA has been running for the last year.
In case you're not familiar with the case, a story broke last year that the NSA had been wiretapping many (but an unknown number) of phone calls in the US, without getting warrants before hand. Previously, it was necessary to get a warrant from a court set up by the Foreign Intelligence Services Act (FISA) in the wake of Nixon's Watergate scandal. and known simply as the FISA court. It was fine for the NSA or the CIA to wiretap first, then notify FISA to get approval retroactively. FISA approved nearly 16,000 wiretaps over the last 20-30 years, and rejected less than 10. So, when the Bush administration told everyone that they needed to move quickly and that there wasn't time to get warrants, they were simply using it as a smokescreen.
FISA's court was specifically set up to allow the executive branch a lot of freedom while still providing both unencumbered oversight AND secrecy. When the story broke, the Chief of the court resigned, because it was abundantly clear that they had totally bypassed their court and thus made it powerless.
But still, nobody on the outside knew (or knows) exactly what the program's scope was. After a lot of informed speculation and a few leaks, it becomes apparent that the reason they couldn't go through FISA was partially for two reasons- firstly, that they figured FISA would reject some of these wiretaps. But secondly, and much more importantly, it seemed that the program was of such huge scope that even if the court agreed with the intent, they actually couldn't possibly approve them fast enough.
So the way the program looks today, is that this wiretapping program is probably running on a large number (perhaps even a majority) of phone calls in the country, and almost certainly running on every single international call. Technically, it's not clear what the program does. Clearly, there isn't enough manpower for there to be a human listening to every call, but there IS enough computing power to run some fairly sophisticated analysis on them. Everyone who knows about the program is careful to NOT use the terms 'data mining' and 'monitoring' because of their connotations. (By the way, when did that become such a dirty term? I took data mining classes in school, should I have felt like a dirty subversive facist?) But the point is that there is probably analysis of the actual voices, as well as context-- times the calls took place, which countries, and how often they called. Though it's easy to argue that it isn't really 'monitoring' or 'data mining', does that really make it ok?
What I think this program is closer to is red-flagging. This is a fairly common practice in law enforcement. If you buy 10 packs of sudafed in a month, you're probably going to go on a list somewhere for potential drug dealers. If you buy 200 cases of ammunition, you're probably going to go on a list of potential arms dealers. If you buy the "Anarchist's Cookbook" and 80 pounds of fertilizer, you're DEFINITELY going on a list somewhere. So, this isn't exactly brand new territory. The first problem with this program is that its scope is enormous, and the second is that because it's automated and probably sophisticated, going from red-flag to investigation is pretty simple.
Let's say you do buy 200 cases of ammunition. Sure, you go on a list, and perhaps the police might keep an eye on your underground bunker/cult shrine a little more closely. But there's not necessarily anything they can do just based on the red flag. But with this program, let's say you get flagged- only this time, I'm pretty sure that they can and will go back and listen to all your calls (because when they were flagged, they got recorded.) Then, after the call is confirmed to be a good lead, they'll go to FISA and say 'hey, we needed to wiretap this guy, he was a terrorist' and get approval. But the point is that without the program- there would have been no suspicion AND no evidence. In these other program, only suspicion is being harvested. In this one, they're harvesting both. That crosses the line for a lot of people, but for others, it doesn't.
To switch gears slightly, Hayden (head of the NSA at the time this program started) is due up to become the head of the CIA, the head honcho in the fight against terrorism. And clearly, he thinks this program doesn't cross that line- or even if it does, that line needs to be moved in the new age of terrorism. And he also thinks that it's necessary for the program to be secret- only open to oversight by the Senate Intelligence Committee. And, in support of this idea, the Vice Chairman of the committee, Senator Carl Levin, began the hearings by saying that secrecy though they would like to inform the public, they can't do so without informing the "enemy". And so, like a good public servant, he told us that we should trust them, because we elected them to oversee it. Not the most reassuring statement.
And here's my problem with that statement. Every single time the government has done something objectionable- like the McCarthy hearings, or the Japanese internment camps, there was oversight. If this program is actually ten times as invasive as we think it is, who would do something about it? The crux of this problem is that "average" amercians will not be affected by it. Average Americans never have to worry about civil liberties, because the average American isn't a terrorist, gun owner, journalist, or anything. The majority of Americans aren't anything at all. And the Senators know that. They know that as long as they don't get 'average' people caught up in the program, anyone they catch can simply be labeled as a terrorist and paraded around as a victory for the program, just as they labeled people communists, or labeled all Japanese as possible traitors. Sure, the program might work, and sure, the vast majority of Americans will have nothing to fear from it. But is that's exactly the problem with civil rights. What happens when your group (and everyone is a minority in something) comes under fire next?
In case you're not familiar with the case, a story broke last year that the NSA had been wiretapping many (but an unknown number) of phone calls in the US, without getting warrants before hand. Previously, it was necessary to get a warrant from a court set up by the Foreign Intelligence Services Act (FISA) in the wake of Nixon's Watergate scandal. and known simply as the FISA court. It was fine for the NSA or the CIA to wiretap first, then notify FISA to get approval retroactively. FISA approved nearly 16,000 wiretaps over the last 20-30 years, and rejected less than 10. So, when the Bush administration told everyone that they needed to move quickly and that there wasn't time to get warrants, they were simply using it as a smokescreen.
FISA's court was specifically set up to allow the executive branch a lot of freedom while still providing both unencumbered oversight AND secrecy. When the story broke, the Chief of the court resigned, because it was abundantly clear that they had totally bypassed their court and thus made it powerless.
But still, nobody on the outside knew (or knows) exactly what the program's scope was. After a lot of informed speculation and a few leaks, it becomes apparent that the reason they couldn't go through FISA was partially for two reasons- firstly, that they figured FISA would reject some of these wiretaps. But secondly, and much more importantly, it seemed that the program was of such huge scope that even if the court agreed with the intent, they actually couldn't possibly approve them fast enough.
So the way the program looks today, is that this wiretapping program is probably running on a large number (perhaps even a majority) of phone calls in the country, and almost certainly running on every single international call. Technically, it's not clear what the program does. Clearly, there isn't enough manpower for there to be a human listening to every call, but there IS enough computing power to run some fairly sophisticated analysis on them. Everyone who knows about the program is careful to NOT use the terms 'data mining' and 'monitoring' because of their connotations. (By the way, when did that become such a dirty term? I took data mining classes in school, should I have felt like a dirty subversive facist?) But the point is that there is probably analysis of the actual voices, as well as context-- times the calls took place, which countries, and how often they called. Though it's easy to argue that it isn't really 'monitoring' or 'data mining', does that really make it ok?
What I think this program is closer to is red-flagging. This is a fairly common practice in law enforcement. If you buy 10 packs of sudafed in a month, you're probably going to go on a list somewhere for potential drug dealers. If you buy 200 cases of ammunition, you're probably going to go on a list of potential arms dealers. If you buy the "Anarchist's Cookbook" and 80 pounds of fertilizer, you're DEFINITELY going on a list somewhere. So, this isn't exactly brand new territory. The first problem with this program is that its scope is enormous, and the second is that because it's automated and probably sophisticated, going from red-flag to investigation is pretty simple.
Let's say you do buy 200 cases of ammunition. Sure, you go on a list, and perhaps the police might keep an eye on your underground bunker/cult shrine a little more closely. But there's not necessarily anything they can do just based on the red flag. But with this program, let's say you get flagged- only this time, I'm pretty sure that they can and will go back and listen to all your calls (because when they were flagged, they got recorded.) Then, after the call is confirmed to be a good lead, they'll go to FISA and say 'hey, we needed to wiretap this guy, he was a terrorist' and get approval. But the point is that without the program- there would have been no suspicion AND no evidence. In these other program, only suspicion is being harvested. In this one, they're harvesting both. That crosses the line for a lot of people, but for others, it doesn't.
To switch gears slightly, Hayden (head of the NSA at the time this program started) is due up to become the head of the CIA, the head honcho in the fight against terrorism. And clearly, he thinks this program doesn't cross that line- or even if it does, that line needs to be moved in the new age of terrorism. And he also thinks that it's necessary for the program to be secret- only open to oversight by the Senate Intelligence Committee. And, in support of this idea, the Vice Chairman of the committee, Senator Carl Levin, began the hearings by saying that secrecy though they would like to inform the public, they can't do so without informing the "enemy". And so, like a good public servant, he told us that we should trust them, because we elected them to oversee it. Not the most reassuring statement.
And here's my problem with that statement. Every single time the government has done something objectionable- like the McCarthy hearings, or the Japanese internment camps, there was oversight. If this program is actually ten times as invasive as we think it is, who would do something about it? The crux of this problem is that "average" amercians will not be affected by it. Average Americans never have to worry about civil liberties, because the average American isn't a terrorist, gun owner, journalist, or anything. The majority of Americans aren't anything at all. And the Senators know that. They know that as long as they don't get 'average' people caught up in the program, anyone they catch can simply be labeled as a terrorist and paraded around as a victory for the program, just as they labeled people communists, or labeled all Japanese as possible traitors. Sure, the program might work, and sure, the vast majority of Americans will have nothing to fear from it. But is that's exactly the problem with civil rights. What happens when your group (and everyone is a minority in something) comes under fire next?
# posted by Stuart @ 1:36 PM 
