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Friday, May 16

"The Minority Report" Revisited: Pre-criminalizing the governed in the era of unrestricted surveillance

Introduction

Readers who saw former NSA Chief Keith Alexander's interview with PBS NewsHour's Judy Woodruff on Tuesday, and who are knowledgeable about the issues connected with the release of classified NSA files, would know that he was selling the Brooklyn Bridge. (Here is the interview transcript.)
 
Not only did he lie, he lied in the best tradition of the disinformation specialist, which is that if you make the lies big enough people will assume that at least some part of what they're told must be true.  Keith Alexander lied from beginning to end, from the soup to the dessert course.

As to why Woodruff sat there like a stump on a log and returned only cream puff questions: perhaps because PBS, which premiered FRONTLINE's United States of Secrets that same night, followed the "equal time" rule to allow Alexander a rebuttal to FRONTLINE.  If so, PBS confused a matter of gravest and most urgent national importance with legislation up for a Senate vote, whereby TV news gives Democrats and Republicans equal air time to promote their respective positions.

Yet it could be that Woodruff doesn't fully understand the issues involved, allowing Alexander to talk rings around her.  If that's the case, her lapses in knowledge would put her in large company.  The complexity and large number of the classified NSA programs being released to the public have meant a daunting task for those in the public trying to get a handle on what the programs add up to.

To convey the extent to which Alexander lied, the key NSA program to understand is something called XKeyscore. I think the best discussion of the program for the general public is still the Guardian's original July 31 report on XKeyscore, which "allows analysts to search with no prior authorization through vast databases containing emails, online chats and the browsing histories of millions of individuals ..." 

It's also important to get an idea of the extent to which Alexander lied to Woodruff about NSA's ability to foil terrorist plots. This analysis by a national security expert named Teun van Dongen is the clearest deconstruction I've found of NSA's wildly overstated claims. (Hat Tip: Truth Out)

The rest of this writing is my response to remarks made by "Colonel Bunny" in the Pundita comment section about my post on Stratfor Chief George Friedman's analysis of the NSA.  I've also published Bunny's comments at the end of this post.

I think his main defense of NSA rests in the high priority he's given to the issue of protecting America against terrorist attacks; I've specifically addressed this starting in paragraph 18 of my reply.
 
This writing also addresses, briefly, the issue of SIGINT (signals or 'machine' intelligence gathering) versus HUMINT (using humans for intelligence gathering).  The  issue is the most underreported aspect of the NSA Affair, yet it's one of the most important.  NSA apologists have studiously overlooked the issue in their claims that Edward Snowden has done great harm to America's intelligence-gathering capabilities. Actually his revelations have been an Eleventh Hour wake-up call that SIGINT has been overly applied and with awfully dangerous results.
 
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1.  NSA's scorched-earth approach to data collection "pre-criminalizes" the American populace.  The approach was mounted at the behest of the U.S. Executive and Congressional branches of government and received full cooperation from the U.S. military and all the nation's security agencies.

2. Pre-criminalizing people holds them responsible for a crime that hasn't been conceived, plotted or committed and might never be conceived, plotted or committed.  
 
3. I know of only one other instance in which a government has pre-criminalized ("pre-crimed" for short) the governed. This was a Canadian law known as Section 13, recently stricken down by an act of the Canadian Parliament. 

4. The concept of pre-criming is so alien to any rational and humane concept of justice, so alien to any Western judicial system, that in 2008 when I set out to explain Section 13 to Pundita readers I had to turn to dystopian fiction, to Philip K. Dick's The Minority Report, to find a rough analogy that would help illustrate the meaning of pre-criming.

5. Yet at least targets of Section 13 got a warning. They were notified by the Canadian Human Rights Commission or its provincial versions that they were being investigated by the state for an alleged violation.  No such warning is attached to the NSA's electronic metadata collection, which is as silent as carbon monoxide.

6. Because the concept of pre-crime is unknown outside science fiction and that one instance in Canada, criticism of the NSA metadata collection program has been framed in terms such as "privacy invasion," "suspicionless surveillance," "preemptive surveillance," and so on.

7. These characterizations are true as far as they go but don't convey the scope of the issue.  What NSA has been doing goes beyond even the surveillance that is characteristic of a totalitarian police state, which only criminalizes the governed; i.e., puts them under suspicion for crimes against the state.  Again, NSA surveillance holds the governed responsible for crimes that may never be conceived.
 
8. This is not only subversion of the First and Fourth Constitutional Amendments. This is the stuff of Franz Kafka's worst nightmares.  A rational and humane system of justice cannot survive if a person is in effect guilty of crimes yet unconceived and uncommitted because of the mere fact of his existence. Yet this is just what NSA's approach to surveillance presumes.

9. That Michael Hayden is saying the NSA's "collect it all" approach doesn't actually mean collecting it all -- he is saying that now (as he did at the Toronto debate), after NSA was caught red-handed collecting it all.  And Hayden's words are no assurance that the U.S. government will apply any more than a Band-Aid to its totalitarian approach to surveillance. 

10. Anyone who assumes that the technology doesn't exist to store it all -- "all" meaning absolutely everything that occurs as a digital or electronic communication -- is misinformed.  That's what the NSA's Utah facility was built to do eventually.  See this Forbes July 2013 report, Blueprints Of NSA's Ridiculously Expensive Data Center In Utah Suggest Its Storage Capacity is Less Impressive Than Thought.  Read the entire report to understand that the headline is somewhat misleading. That the facility doesn't seem as yet to have the capacity to store it all, the capacity can be readily expanded.

11.  I'm not sure what Colonel Bunny means by privacy.  But the U.S. government has a growing ability and willingness to pinpoint and project the physical location of any citizen at any time and also his reason for being at any one physical location, and do this within a matter of moments and without the citizen's knowledge. This goes far beyond a privacy issue. It is the attempt to render an entire society into a prison. Electronic metadata collection in combination with other digital technologies can do just that.
 
12. The point was brought home by Pulitzer Prize-winning Washington Post journalist Barton Gellman during his talk at the SXSW conference in March:
Gellman told of a colleague who said he wasn’t concerned about metadata and his privacy. The colleague used Twitter heavily and with location stamps. So Gellman downloaded three months worth of the colleague's Twitter location stamps and plotted them on a Google map, [revealing] the times, frequency and significance of each location. His horrified colleague consequently changed much of his behavior online.

“I would rather someone listened in to all my phone calls than accessed my metadata. You can learn much more about me from the metadata," explained Gellman.
Gellman also observed, “One of the great gifts of Snowden is that he has shown what surveillance can do."

Yes. Until Snowden began his teaching mission the vast majority of Americans, even ones who considered themselves tech savvy, had no idea that the world depicted in the  film The Matrix, in which there is no place to hide from agents of the state, was imminent in the United States -- the vaunted bastion of freedom.
 
13.   There's no valid comparison between physician's records and NSA's collection of data on law-abiding citizens.  So I don't understand why Colonel Bunny invoked the analogy.  The patient is aware of his record, aware of what's in the record, and has a legal right to examine the record and point out errors and demand they be corrected.  And by law the physician can't share information in the record with third parties without receiving written permission from the patient.

14. None of these considerations apply to NSA collection of data on private citizens.  Moreover, by the simple fact of the NSA's collection and storage, the records become classified -- thereby making it impossible for a citizen without a security clearance to review the data that's been collected on him.  Even if the citizen could obtain through FOIA his data record once it was declassified, the state reserves the right to heavily redact the record.

15. Moreover, because the data is collected in secret, it was not until Snowden revealed the classified NSA programs that American citizens had any idea that such information on them was being collected by the state. (Beyond certain persons in phone and Internet service provider companies who were forced to turn over records to NSA without the customers' knowledge.)

16. So to answer Bunny's rhetorical question, "Don't we already tolerate a certain amount of information in the hands of third persons?" -- yes we do, but we tolerate what we know about the collection of our personal information. And our tolerance is based on certain assumptions; e.g., that personal information we provide to, say, the Census Bureau or IRS won't be shared with parties that have no business with the information.  It's the same with the facial recognition technologies that Bunny mentioned: we are aware of their existence and how they are used, and we consent to their use.

17. In short, Bunny's argument fails to make a distinction between "secrecy" and "secrecy that is kept secret."  Americans understand the need for their government to carry out certain duties in secret and we consent to this. Yet without the consent of the governed there is no such thing as a democratic republic.  There is only a Potemkin democracy, a democracy of the voting booth -- a ritual made empty by the fact that voters are only allowed to consent to changes in personnel but have no real control over what the personnel do in their capacities in government.
    
18.  Regarding the security issue as it pertains to terrorism, Bunny wrote:
Like any area in the criminal law, we have to take reality into account. Where the activities of Muslims are concerned, I'm willing to have NSA violate my privacy (without possibility of criminal penalty to me) in order to get at real scum. The alternative is no NSA collection at all and surely we can agree that that's not an option that we can afford.
19. Firstly, the alternative Bunny proposes is a false dilemma -- the same false dilemma that was famously invoked last year by then-NSA chief Keith Alexander in testimony before Congress, when he said that if the NSA programs weren't allowed to continue, people would die. By this he meant Americans would die in terrorist attacks.

20. Alexander's remark studiously ignored the fact that it's well established that the NSA can collect data on suspected terrorists without doing the kind of blanket collection that violates the privacy of citizens who have no connection with terrorism.

21. An earlier NSA director, Michael Hayden, rejected a surveillance program called ThinThread in favor of one called Trailblazer, even after ThinThread was shown to work.  ThinThread is a minimally invasive method of electronically gathering data on just those people who could reasonably have a connection with a terrorist suspect. 

22.  As to why on earth Hayden rejected ThinThread, it's never been made clear to the public, to my knowledge, or at least the answers don't hold water.  However, cynics point out that the alternative he settled on is wildly expensive; i.e., it greatly increased NSA's budget and capacity to add a great many additional departments and employees to NSA.

23. There is a large amount of information available on the Internet about ThinThread, for anyone interested in learning the details on how it works. And I note the FRONTLINE documentary includes a discussion of ThinThread. Here's my post from last year on the topic and here's the Wikipedia article on ThinThread.

To wrap up the point, it's absolutely not true that we must choose between the current NSA approach and no approach.

24.  The topper is that the current NSA approach hasn't worked: NSA's anti-terrorism surveillance program has been a catastrophic failure.   I think this is one of the most surprising revelations to emerge from the NSA Affair. 

25. That it doesn't work has been so well documented by independent investigations during this past year -- one launched by President Obama himself -- that it's not open to argument.  Again, read van Dongen's discussion for details.  And here are summaries of just two of the investigation findings, which I've taken from Wikipedia's article on Edward Snowden.  (See the article for the sources; here I've only provided the source numbers):
An analysis released by the New America Foundation in January 2014 reviewed 225 terrorism cases since the September 11 attacks found that the NSA's bulk collection of phone records "has had no discernible impact on preventing acts of terrorism", and that US governments' claims of the program's usefulness were "overblown".(349, 350) Officials maintained that the program was a good "insurance policy".(351)

Another review in January 2014, this from the Privacy and Civil Liberties Oversight Board (PCLOB), found the NSA's phone metadata program to be illegal and of "only limited value." The board, chosen by Obama, said it "implicates constitutional concerns under the First and Fourth Amendments."

The board was unable to find "a single instance" that the program "made a concrete difference in the outcome of a terrorism investigation" or "directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack."(352) The White House rejected the findings, saying "We simply disagree with the board's analysis on the legality of the program".(353)
 26. The NSA's failure at anti-terrorism surveillance is not the half of it.  The extreme reliance on SIGINT for anti-terrorism intelligence gathering has siphoned critically needed funding from HUMINT programs, of the kind fielded by the CIA.
 
27. The military's passion for SIGINT, as with its short-lived craze for POPCOIN (population-centric counterinsurgency tactics) in Afghanistan, is misapplied to uncovering terrorist plotting, much of which is the lone wolf variety. Moreover, it is laying waste to America's HUMINT capacities and making the U.S. far too dependent on the HUMINT operations of foreign governments -- several of which are Janus-faced.

28. If the NSA scandal teaches the military and Congress nothing else, I would hope it's that they must confront the limitations of SIGINT.

29. To return to Bunny's remark about Muslims, I don't know whether he's aware of a 2012 study that was partly funded by the Department of Homeland Security.  It found that "extreme right-wing terrorism," not Islamic terrorism, is the biggest threat to American national security. A right-wing extremist to include a person "reverent of individual liberty" and one "suspicious of centralized federal authority."

30. The majority of the American population would probably fall in the category of a right-wing extremist. Not to put too fine a point on it, but I venture Colonel Bunny needs to go back to the drawing board if he believes that NSA is only surveilling Muslim extremists.

31. In conclusion, there is no question that when Ed Snowden stood up to warn, America was already headed down a road that is the stuff of dystopian fiction and the nightmarish system of justice envisioned in Kafka's The Trial.  Yet I end on a hopeful note.  There has been steadily growing acknowledgment at the highest levels of the British government, which more than any other foreign government has been involved with NSA programs, of the great danger in unrestricted government surveillance of populations.
 
32.  The acknowledgment is now being translated into action, as a May 9 Guardian report details.  This could have far-reaching effects, not only among British Commonwealth governments that are part of the "Five Eyes" surveillance programs, but also in the United States.

33. It is a perversion of the concept of justice to criminalize people for acts they have not even conceived.  This must be stopped. It would be fitting, I think, that the land that gave humanity the Magna Carta would lead us to a reiteration of its principles of justice.

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Colonel Bunny's Remarks

The exclusionary rule was a salutary, practical disincentive for the state to violate the rights of citizens AND try to impose a sanction on the citizen based on what info was obtained by the violation.

One might be uncomfortable about the content of one's emails and phone conversations being stored in NSA computers but might that be compared to what information about oneself is contained in a physician's files? Don't we already tolerate a certain amount of information in the hands of third persons? Warranted or unwarranted invasion of privacy may be an irritant but it's a minor one by any measure compared to being a guest of the sheriff.

The Fourth Amendment speaks to "unreasonable" searches and in the context of PRISM-like activities directed at al Qaida it's not stupid or deceptive to argue that such searches are "reasonable."

Included in any debate should be a discussion of the "fruit of the poisonous tree" doctrine that appropriately elaborates on the exclusionary rule. Courts that are willing to declare such nonsense as that one has a lessened expectation of privacy in one's automobile or that "inventory" searches are not gross police end runs around the Fourth Amendment (or state equivalents) are well equipped to bless evidence of crime uncovered (as a result of the poisonous tree) if the police are willing to get creative about finding "independent" pointers that brought a miscreant to their attention.

Like any area in the criminal law, we have to take reality into account. Where the activities of Muslims are concerned, I'm willing to have NSA violate my privacy (without possibility of criminal penalty to me) in order to get at real scum. The alternative is no NSA collection at all and surely we can agree that that's not an option that we can afford.

Facial and license plate recognition technology is a related problem for the citizen. One argument in favor of such tools is that we have become such an anonymous and mobile people that we are far removed from the world of 1789. Then I would have been far more subject to "surveillance" of my neighbors and I would not have moved in a sea of faces, bodies, and closed vehicles. A horse thief could maybe make 50 miles a day. Today, a car thief can make 1,000 miles a day. Does recognition technology restore more of the realities of community life that existed without debate or worry in 1789?

[END REMARKS]

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