MANAGING SURVEILLANCE: TOUGH CALLS, CLOSE CALLS, NECESSARY CALLS

Charlie Savage’s NY Times preview of the scathing review given the NSA’s surveillance program by the federal Privacy and Civil Liberties Oversight Board is focused, quite properly, on the questions the Congressionally-created Board raises about the legality, even the Constitutionality of the whole program.

http://www.nytimes.com/2014/01/23/us/politics/watchdog-report-says-nsa-program-is-illegal-and-should-end.html?hp

A majority says, in a 238 page report that was released today, that the NSA’s reading of what Section 215 of the Patriot Act authorizes is completely wrong, and that the NSA’s actions taken under their self-generated power abuse the First and Fourth Amendments of the Constitution. 

“David Medine, the board’s chairman and a former Federal Trade Commission official in the Clinton administration; Patricia M. Wald, a retired federal appeals court judge named to the bench by President Jimmy Carter; and James X. Dempsey, a civil liberties advocate who specializes in technology issues,” Savage reports, want the open-ended surveillance of Americans’ “private” lives ended.  “But the other two members — Rachel L. Brand and Elisebeth Collins Cook, both of whom were Justice Department lawyers in the George W. Bush administration — rejected the finding that the program was illegal,” and want the it continued.

That important disagreement aside, the Times says, all 5 members agreed to 10 surveillance reforms that they want implemented immediately.

“Some of those recommendations,” Savage says, “dovetailed with the steps Mr. Obama announced last week, including limiting analysts’ access to the call records of people no further than two links removed from a suspect, instead of three, and creating a panel of outside lawyers to serve as public advocates in major cases involving secret surveillance programs.

“Other recommendations — like deleting data faster — were not mentioned in the president’s speech. And all members of the board expressed privacy concerns about requiring phone companies to retain call records longer than they normally would, which might be necessary to meet Mr. Obama’s stated goal of finding a way to preserve the program’s ability without having the government collect the bulk data.”

Pardon me, but what nonsense the Obama less-than-a-proposal is!  The tracking technology which has radically reduced any rational expectation of privacy should be kept intact, the President says.  OK by me, you can’t abolish knowledge.  But it is inexcusable that the President leaves the heart of the matter, governance, managing the deep-reaching surveillance technology, the limits placed on tracking, on recorded-keeping, on access, and the oversight to enforce the limits, to be figured out sometime in the future by somebody else.  Even worse are his choices for those somebodies:  the flip-flopping record-breaking persecutor of journalists and whistleblowers, Attorney General Eric Holder, or the Liar, to his Congressional and Judicial monitors, Director of National Intelligence Gen. James Clapper. Oy!  Or as my Grandma would have said, “Feh.”

Hey, Mr. President, what? are you tired or something?  Those decisions are for you.

Obama’s big problem – and it’s a whopper – is, too many Americans simply don’t trust his judgment.  That’s bad enough, but the President makes it worse by claiming that a mistrust that is personal to him extends to the American Government.

That institutional mistrust is real, and is another awful problem, assiduously cultivated, not just by a blame-shedding President, but by selfish 0.1%ers like the Koch brothers, who want government undermined like speeders want the highway patrol off the roads or rotten bond-selling financiers want to practice their manipulations without regulation. 

Rather than  fight for his citizens’ trust by making choices and sticking by them, the President coddles the mistrusters by suggesting, the data about them the government ordered gathered, to which it demands the option of immediate access, will be more private if the phone company or some newly created private company actually keeps it.

First off, if the data is there, and the government has the right to call it in when it says it must, what difference does it make where it puts the nozzle of its vacuum cleaner?  Typically, this whole discussion is a distraction, Obama’s “solution,” a diversion.

It is, at bottom, just more “contracting out” another vital government responsibility.  That worked really well for healthcare.gov, didn’t it, and in Iraq and Afghanistan? 

There, poorly-paid soldiers learned their Army didn’t trust them with their generals’ security, preferring to hire much-better-paid private contractors.  Even several of the generals I talked with understood this undermined troop morale and cohesion. 

Also in Iraq,  I saw State Department efforts at public outreach destroyed by their security contractor cowboys and bullies.  Blackwater got rich; Iraqis got bruised or worse, and America got a black eye.

Sometimes, both soldiers and diplomats were needed to rescue contractors who hadn’t bothered to co-ordinate their missions -- or even their schedules -- with either the military or civilian chain of command.  And then there was the persistent corruption on the civilian side, between USG-selected American contractors and local sub-contractors -- literally a billion dollar business.

In building the healthcare websites, contractors consistently failed to meet standards or deadlines, then swept problems under the rug, until opening day left their lax overseers humiliated when nothing worked right.  Had the work been done within the government, by people who knew they would have to live with the results, not move on to their next assignment as soon as their contract ran out, more alarms would have been sounded, louder and earlier.

But, the Times’ Savage, like me, buries the lead, the big question: is the super-charged surveillance worth the trouble?  It sounds to me like his answer is no.  “The report also scrutinizes in detail a handful of investigations in which the program was used, finding “no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”

If Big Data can’t see around corners, can’t prevent terrorist attacks, who needs it?

My answer?  We do.

It is true, all the surveillance in the world (which the NSA virtually has) can’t and usually doesn’t pre-empt what Don Rumsfeld brilliantly called, “unknown unknowns.”  There are too many grievances, too many weapons, too many opportunities.  Bad shit will happen.

But, if terrorism cannot be prevented, the costs of practicing it can be raised, and the NSA surveillance system should assist in that.  Even when it doesn’t prevent terrorism every “this time,” it can radically reduce the number of “next times.”

It’s no accident Al Qaeda followed 9/11/01 with literally years without a significant strike.  The World Trade Center and Washington attacks cost the group almost 2 dozen operatives, some with years of training and indoctrination behind them.  Each of the terrorists left behind a history, a trail of connections and associations, people who were taken off the board or driven into hiding and relative ineffectuality, because intelligence services could retrospectively identify them. 

And this was during the technological dark ages; today we’re in the renaissance of the digital dark arts, where the metadata of the multitudes can be scanned much more efficiently.

It will still be a difficult job, making sure that only relevant metadata gets collated for the right reasons, but it can be done.  And only government, not some designated private contractor, can be held responsible to do it right.

You would rather trust Google or the Phone Company?  Not me.

But even done right, no miracles should be expected.  No one consistently predicts the future.  Better understanding of the past, however, can change the future. The networking reconstructions the surveillance system can yield after a terrorist attack can defeat others still short of execution.

There was some good news in the Privacy Board’s report.  In its meticulous examination of NSA surveillance activities, the Board unanimously agreed, it found not a single case of misbehavior, of anyone’s privacy being gratuitously penetrated, not a scintilla of evidence that any snooper was cavalier about citizens’ prerogatives.  This is, of course, no more a guarantee of future behavior than the massive nature of the information-gathering inevitably predicts future misbehavior.

Let’s assume Barack Obama knows all of this, all the pluses and minuses, all the likely limits on success, not just the potential catastrophes of failure, the real risks and realistic expectations from NSA surveillance.  Isn’t it past time he talked honestly to us about where lines of conduct should be drawn?  Isn’t this his mandated Presidential role, what his predecessor called being “the Decider?”   

It is a tough job, but somebody does have to do it. 

MORE PROOF: PRIVACY IS DEAD

I share a communication tonight from me to Politico's fine media writer Dylan Byers, even if it, and this, are shamelessly self-promoting.  Who sez i can't do new media? :)

Hi Dylan,

Your note today on the surveillor surveilled played perfectly into my hands.  Heh heh.

http://www.politico.com/blogs/media/2013/10/danger-on-the-acela-175888.html

I have been writing a blog:http://davemarashsez.blogspot.com/.

The very first post, from July 9, is perfectly apposite (says I) for today's news. 

It posits that our world is defined by twin realities: personal privacy is dead, and so is government secrecy.  

Between the endless powers, and gluttonous appetite of the NSA, registering and if they choose, penetrating all our once-private communications, virtually everything we say, write or think can be known to the government, and our ubiquitous cellphone and tablet cameras, not to mention digital audio recorders, mean that anything that happens in public view can be publicized globally almost instantaneously via the internet and social media.

This world of observation and digitally distributed blabber works as efficiently for secrets governments once considered private to them, and will continue to be fed as long as governments employ human beings.

So... 

Here's that first blogpost...

http://davemarashsez.blogspot.com/2013/07/privacy-and-secrecy.html

And here's today's, discussing the NY Times' very recent use of interviews just like the one Mattzie spied out. 

http://davemarashsez.blogspot.com/2013/10/obama-according-to-times-indecisive.html

Oh yes, did I have a point?  Yes, please check the blogs out, and if you deem it suitable, put my name on your list of recommended bloggers.

All the best,

dmarash

 

 

25 QUESTIONS ON SURVEILLANCE, SECURITY, JOURNALISM, PRIVACY AND DEMOCRACY

Recently, 2 serious and stimulating papers have been published looking at the state of journalism, particularly investigative journalism, in the Age of Obama.  Both the collective writers at the TOW Center, who have directly addressed their remarks to the President’s Panel on NSA surveillance issues, and former Washington Post editor Len Downie, in his brilliant essay for The Committee to Protect Journalists (where I was a founding member, a past Chair, and Executive Board member and still serve of the CPJ Advisory Board) consider the impact of Mr. Obama’s unmatched record of aggressive criminal prosecution of suspected whistleblowers, leakers, and the journalists with whom they communicate.

Both are well worth your attention.

http://towcenter.org/wp-content/uploads/2013/10/Letter-Effect-of-mass-surveillance-on-journalism.pdf

http://www.cpj.org/reports/2013/10/obama-and-the-press-us-leaks-surveillance-post-911.php

Reading them has stimulated me to pose a series of questions, whose answers may well define, not just the future of American journalism, but of American democracy.

1)    In a democracy, do citizens have the right to know everything their government is doing (in their name and with their money)?

 

2)    Or do governments have a right to keep secrets from citizens?

 

3)    If the answer to 2) is “Yes,” what should be the limits on what can be kept secret?

 

4)    Must official secrets be limited to those deemed essential to the security (or just the interests) of the nation and its people?

 

5)    Who should be empowered to monitor what is to be kept secret, and to make sure the specified limits on secrecy are strictly observed?

 

6)    Under what rules should these monitors work, and what guarantees of access to secret materials should they have? 

 

7)    How should their work be made accessible to citizens?

 

8)    What (in addition to these institutional monitors) is the role of the free press in  reporting on government secrecy and secrets? 

 

9)    Have press revelations of secrets ever actually damaged national security?

 

10) Is the public better off for the press’ exposure of government “secrets”?

 

11) Would the public be worse off if the government had absolute power to protect its self-declared secrets, backed by the threat of criminal or professional sanctions against those who make them public?

 

12) If the government forecloses secure press access for dissenters or whistleblowers will it leave these “witnesses” no other choice than immediate and total “publication” of dissident information via the internet?

 

13) Is the government’s and nation’s interest better served by securing access for whistleblowers to journalists, who focus their data-gathering, winnow both data and sources, do further reporting for context and reactions, consult with and solicit comment from government, before presenting and distributing their information, or by sending whistleblowers (with often inchoate, unchecked, information) directly to the global digital audience?

 

14) How can protections for whistleblowers and journalists be institutionalized to guarantee maximal public access to important information or judgments, without endangering national security?  

 

15) And what protections should citizens have to protect their privacy, and limit the intrusive powers of government?

 

Let’s assume the government has access to and registers all digital – phone, internet, and US mail communications.

What problems do those capabilities create?  We’ll seek answers through the journalist’s 5 basic questions: who, what, where, when, why?

Targeting:  Potentially? Worst case? The answers to, “Who can be targeted?” are: WHO? Everyone. WHAT? All communications. WHEN? Whenever. WHERE? Everywhere. WHY? Because government can.

Actually?  We need answers to these questions.

 

16) WHO?  Whose communication file be opened, examined, and further processed?

 

17) WHAT? Once a communications file is opened, what kinds of data can be examined?

 

18) WHEN?  Should investigations be time-limited? For keeping files open? For analyzing what’s in them? For taking action based on collected data?

 

19) WHY?  Should investigations and analyses be broadly issue-specific,--  to protect national security, to combat major criminal activity, to serve the public interest?

 

20) Should they be narrowly case-specific, limited to data relating to particular threats or crimes?

 

21) Should they simply be target-specific?  With what threshold for targets, for secondary targets, for wider examinations based on networks of secondary or  tertiary communicants?

 

22) Should there a defined threshold for suspected “security threats” or suspected criminal activities to predicate violations of personal communications data?

 

23) Are simple keywords sufficient predicates for opening, and processing communications data?

 

24) Who (in government and out?) can know your secrets?

 

25) What right and mechanism of appeal would citizens have to contest government surveillance of their communications?

 

I’m sure this list is only the beginning for a discussion of the highest importance.  Please feel invited to join.

PRIVACY AND SECRECY

The “debate” over PRISM and other American and international snooping programs grows more pathetic by the day, still dominated by laments over these “evil” new technologies of data gathering and collation.

The latest “highlight” was conservative columnist Robert Samuelson’s regretting the invention of the Internet.  This is the return of the mad Irish King Cuchulainn cursing the ocean’s waves.

The Internet, with all its dangers and opportunities is here, Bob; get over it.  Or better, learn to manage it.

The same must be said for today’s new surveillance technology: it exists, and any national security agency that fails to use it should be disbanded.  The question is how are these new opportunities to monitor people and their communications used by the NSA, its colleagues and competitors.  It is a given that they can and do register and file just about every form and piece of human communication.  But, what triggers more particular and invasive attention to people or institutions?  And once closer looks are begun, who gets access to selected materials?  Who monitors the snoopers from both inside and outside the system, and what powers do they have to rein in irresponsible or unnecessary prying?  And who tells what about all of this to the people who, in a democracy, should have the ultimate power and responsibility?

These are hard questions, but familiar ones, since they recur often, whenever the balance of power between citizens and their states is transformed by technological or cultural change.

In this case, the ongoing development of surveillance technology and data gathering and mining, like the ongoing development of global use of the Internet creates both dangers and opportunities for both sides of the citizen/state balance of power.

On the one hand, for the 21^st Century and beyond, the uncomfortable fact is that personal privacy is dead, and not just because of government supercomputers. The global distribution of mobile phones with audio or video recording capabilities has created an environment in which anything that happens “in public” is almost as likely to be recorded as your “private” phone calls, texts messages, snail- and e-mails, and probably more likely to be distributed with or without your permission.

But, there is a countervailing truth here: government secrecy is as almost as dead as privacy; people have never-before-equaled powers to rip the government’s blindfolds off their eyes.  The fatal flaw of secret systems, that they require human participation, and inevitably, every secret decision can produce active dissent, is nothing new.  But what is new and growing is the ability of whistleblowers to record events, and to distribute the recordings and their dissident criticisms to the world at large. Thus, what really be created is a new and different balance of powers between citizens and states, uneasy, instable, but still a balance of powers.

And the evidence suggests, people have already begun adapting to this new balance.  Even old folks like me have noticed that younger people have different attitudes toward and expectations for privacy.  They are prone to exhibit more of and about themselves than their parents did. Largely this is because they can; but it also because others can create these displays, with little to stop them, and that such exposures create far less embarrassment or social cost.  Note the political returns of Eliot Spitzer, Anthony Weiner and Mark Sanford, just to name 3.  Every college newspaper, it seems, has either a sex or a porn column, which trade in what even fairly recent graduates might consider TMI, too much information.

This is not to say, there are no norms, but just to note that, for most people under 30 the limits on personal disclosure are looser than for older people.  When it comes to the NSA snoopers, the key task will be to determine the norms, not on what you can do, but on what you can do without inviting real surveillance.  If you can fly beneath that radar, and would-be terrorists have long known this and did not need Edward Snowden to tell them to be careful, you can do almost anything you want, until it is too late for even the most aware parents, potential employers or professional counter-terrorists to prevent it.

So, Norms for Our Time:  when you are on the phone or the Internet, assume your every move is being turned into government data, and when you are on the street or anywhere “in public,” assume there is a good possibility everything you say or do is being recorded. 

That’s relatively easy.  Personal and cultural change is constant and people are used to dealing with it.  Much harder is to define and apply rules and limits to powerful institutions like governments and their often-loosely- supervised security agencies.  They are much slower to understand, and much, much slower to adapt to new conditions than people.

After all, it has been 50 years since the US sent troops into Vietnam, and still there has been little recognition of how changes in communications and weapon technologies have made military invasion an exercise in futility.  The universality of digital communication is one key reason why old war-fighting tactics no longer work, and why local organizations cohere so successfully and durably.  The rapid escalation in portable or “improvised” (i.e. locally sourced) firepower is another.  Taken together, these changes explain why, as I like to put it, “In today’s warfare, the visiting team never wins.” 

Gone are the days of “secret wars.”  If a sparrow, much less a bomb falls, the destruction it causes will be publicly known via Twitter, Facebook and supremely, YouTube, not just by the home folks suffering the damage, who will inevitably be alienated from the outside forces responsible for it, but by the “visitors’ own citizens, who will know what death and destruction are being committed in their names. 

Increasingly, Americans are coming to understand that for every terrorist (in, or without quotation marks) killed by American drones in northwest Pakistan, hundreds of friends, relatives and neighbors, and hundreds of thousands of Pakistani fellow-citizens are turned into irrevocable enemies.  They can see the damage on their TV screens, computers and mobile phones. 

Similar secret US attacks inside Somalia, may have eliminated a few terrorists, but they have also strengthened the Islamist terrorist group Al-Shabaab’s legitimacy as an anti-imperialist force there.  Somalis, like Pakistanis, count the collaterally dead as their friends, those who killed them as enemies, and today’s communications technologies assure they, and anyone they can communicate with, can count corpses as easily or efficiently as domestic spooks can track your correspondence.  American diplomats on the ground recognize this blowback, but in Washington, other imperatives still rule.

Between whistleblowers and video cameras, government secrecy is dead as a doornail, or the concept of personal privacy.  The Video Era, like those of such earlier modes of communication as the human voice, the printing press, radio and TV, has created great opportunities for the consolidation of power in those who can control or best utilize those media.  But, equally, for ordinary people the new media, each time they change the world, also greatly empower individual communications to spread farther faster to an ever-growing audience. 

There is a new balance of power in communication and, as Darwin noted, adaptation is the only answer. 

David Marash