Wednesday, June 26, 2013

Thoughts on the NSA scandal

They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.
-- Benjamin Franklin

The very word "secrecy" is repugnant in a free and open society...
-- John F Kennedy

I've been reading a lot about the NSA and the disclosures relating to it of late, and I have some thoughts on the situation, as those who know me might expect. As always with me, nothing is simple, and I am not going to give you a two line TL;DR synopsis. Read it if you care, and if you don't, well, then don't.

On Edward Snowden

Everything in the media about Snowden - his background, education, girlfriend, behavior, where he is, and so on - is a side show. Yes, he broke the law. But whistleblowers do that all the time, trying to raise attention about things that violate their principles.

Is he a criminal? Probably.

Is he a traitor? Maybe.

Is what he has done wrong? Not in my mind. You may feel differently.

Should be punished? Answering that is beyond my pay grade, though my gut says "no".

What is important - really important - is what he's exposed. Most of us knew - or at least suspected - it was going on to some degree, but the documents Snowden has released help shed light on programs that have been hidden for far too long. That is a good and necessary thing, and for that I thank him.

And that is all I am going to say about Snowden himself.

The Problem

Going back decades, but really gaining momentum after 9/11, we - as a nation - have run in fear. Fear of communists. Fear of the Soviet Union. Fear of terrorists. Fear of China. Fear of gays. Fear of the opposing political party. Fear of the other, of the different. Fear, pure and simple.

And after 9/11, it became possible for any lawmaker, of any stripe, to pass just about any law, no matter how restrictive or silly, by claiming it would help "secure the homeland" or improve national security. Fear is a powerful motivator.

And so we've become slaves to our fear, and make far too many decisions based on it.

The intelligence community is the major beneficiary of all of that fear, and (of course) the money all those new laws have made available. We used to have (and sometimes worry about) only a military industrial-complex. Now we have an intelligence-industrial complex. It's a huge beast of a system, employing tens of thousands, and consuming vast amounts of money that often cannot be tracked at all. Someday we're going to be appalled at what the NSA is paying for toilet seats, but up until very recently it's all been black budgets and a complete lack of detail about what they are doing. The recent leaks have shone a small amount of light into the system, and the results are, to me, rather scary.

What we know seems to include:
  • A president who ran for office espousing openness and transparency, but who has changed his tune and now runs a horrifically tight lipped and closed administration, particularly on national security.
  • Lax - or nonexistent - oversight of these programs by congress and the courts that are supposed to oversee them.
  • Agencies operating on secret interpretations of laws that are (and were) controversial. In one case, I have read speculation that the NSA is allowed to collect and record the contents of all the calls and emails it wants because that isn't the actual "intercept" the law prohibits without a warrant. In this interpretation the "intercept" only happens if some agent actually listens to a call or reads an email. Whether that is really true or not, I cannot say, but given the nature of the disclosures to date, it seems entirely plausible.
  • There are few obvious safeguards in place to assure these programs aren't (and won't be) abused, and certainly no proof that abuse hasn't already occurred. In fact one article I've read documented abuse of these programs recently, including capturing the calls of a certain senator from Illinois long before he began his presidential run.
  • There is no assurance these programs are actually useful. The head of the NSA recently said these programs had helped avoid over 50 acts of terrorism, but there is no way to verify that. And, on the rare occasion in the past six months when I have read actual research by journalists into claims of the benefits of NSA style intelligence gathering as they relate to specific incidents, they have all be debunked. In other words, in all the cases I have seen where an attack was thwarted by signals intelligence, the claims have been proven false, and the actual intelligence that did the job was collected in other ways.
  • The head of the NSA has lied to congress - and thus to the people of the US - about the nature of these programs. Don't take my word for it, though. Google him up - General James Clapper - watch him tell congress, in answer to a direct question, that the NSA is not collecting data on millions of Americans. Then read about the court order requiring Verizon to turn over call metadata for every call on their network. He lied, plain and simple. How can a person who does that be trusted with anything? How can a system that encourages that be trusted with anything?
  • And if you're not an American, it appears the NSA can do whatever they want with the data they collect on you: record your calls and listen to them, search your email, save it all forever. And all with no consequences. Isn't the USA just a shining beacon of truth and justice?
The NSA PR machine would probably tell you I am mistaken in all of these claims, but they will offer no proof. Proof would imply exposure, and that is inherently bad in their minds. I disagree. I think it is possible to tell the citizens of the US what the NSA - and any other agencies working in similar ways - are doing, at least in broad strokes - in our name, clearly and succinctly, without risking agents or compromising techniques. They won't do it, of course, but they could. If they did, however, they would have to deal with the backlash, and that might be a bit of political problem.

Personally, I think we've overreacted to 9/11. It was, of course, a horrible tragedy. But what we have done in response is either entirely reactive - looking for things that were done before, so now we're patting down little old ladies and making everyone remove their shoes at airports - or is so secret that we cannot talk about it under any circumstances.

Well I am sick of it all. The introductory quotes I gave are spot on. Just how much liberty should we be giving up? And just how much secrecy should we tolerate? The answers aren't necessarily obvious, but if we cannot discuss these issues, we're giving in, and creating what amounts to a police state in the process. America, the police state. How does that sound? Or how about: "Come to America for the freedom, stay for the monitoring."

They Can Watch Me - I Have Nothing To Hide

I have heard that argument from so many people over the years. It's practically an invitation: please, government (or company), feel free to read my email and listen to my phone conversations. Go ahead and track my movements even. I don't mind, because I am a law abiding citizen and I have nothing to hide. Only the bad guys have something to hide, so go get 'em!

I have two responses:

First, you may have nothing to hide now, but will that always be true? What if you're the one who discovers a crime on the part of those in power? Shouldn't you be able to protect yourself from discovery while you figure out how best to do something about it? Alternatively, maybe your tastes change at some point and you don't want the government knowing about some little habit you've picked up. Maybe it's just a fascination with subversive literature. Maybe you're a historian and you start digging into an event in the past which the current administration wants to keep buried, or sees in a different light than you do. Isn't it possible you might want to hide something, someday? Legitimately? If you cannot imagine that, I submit you're not trying hard enough.

Secondly - and more insidiously - a giant database of call records and similar data can - at the very least - be used to make most anyone look bad in hindsight. If you have interacted with me personally, for example, that makes a connection. And if this (or some future) administration decides this blog post is a problem, you could be looked at with suspicion. And who else have you talked to? Are you certain that every last one of them is a perfectly upstanding citizen, free from any possibility of shame or recrimination? That NSA database of phone call data - combined with a simple reverse phone directory to get at names - can be used to find any number of disreputable people we might have associated with. And five years from now, we won't remember the details, so we'll have a very hard time defending ourselves, if we're even given the opportunity.

The most repressive regimes in the world would love to have the kinds of data the NSA has admitted it is "accidentally" collecting about US citizens right now. Think about that for a minute. You know it's true.

On Our Elected Representatives

President Obama ran promising greater transparency in government. At the Whitehouse website, as I write this, you can find a page about Transparency and Open Government where you can read this opening paragraph:
My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.
I call "bullshit". The Obama administration has been just as bad as - and possibly worse than - the previous administration on transparency. We continue to have a government that stamps things "secret" just for fun, and anything to do with national security is inescapably hidden. The NSA programs have only grown under his watch, and the Patriot Act - a bad law that never should have been passed in the first place - has been extended.

It didn't have to be that way. With a simple presidential directive and a few hours of work on the part of a few key people, the broad outlines of the major programs the NSA is undertaking could be released, and we could have a conversation based on real data, not suppositions, rumors, and leaked documents.

Yes, the terrorists might learn some things not to do - maybe - but remember that Bin Laden was only interacting with others via courier when we finally found him. No satellite phones, no cell phones... just people. And email encryption is a reality already. Don't you think maybe the bad guys already have a pretty good idea about this sort of thing? If they are using unencrypted text in gmail to talk amongst themselves, perhaps they are dumber than we give them credit for.

On the other hand, we the people - the ones paying the bills and electing the leaders - would probably learn a lot. Remember rendition and secret prisons? How about waterboarding and government sanctioned torture? Destabilizing foreign governments? Assassination attempts? All in our name. And now we can ad near universal spying and cyber espionage/warfare (even against our allies) to the list.

And if we're outraged by those disclosures, well, then maybe putting these programs in place was wrong, or the ways in which they are implemented need to be changed. That's part of democracy. But maybe the President - and the rest of our government - has forgotten about that.

Farther down the chain we have a few senators who may or may not have been briefed on these things in some detail. Just how much they know is, of course, unclear. Some of them have missed the briefings entirely. Others have come to the conclusion that the intelligence system is worth every penny we throw in its direction, and that everything the NSA says is true. My own senators have both let me down on this. It appears they think anything and everything is allowed in the name of national security, and I simply do not agree.

I recently read a claim from a Senator that the problem with the system is that it employs too many contractors, as if government employees wouldn't give secrets away. I can only laugh. Benjamin Franklin had another quote that applies here: "Three people can keep a secret if two of them are dead." Note that Franklin doesn't mention who these people might work for. And just in case you think the fact that the NSA related leaks came from a contractor justifies the claim, I have one name for you: Bradley Manning. Private First Class Bradley Manning, in fact. He's the US soldier - definitely a government employee - who passed a treasure trove of classified material to Wikileaks. That government paycheck really saved us in that case, didn't it?

The real problem is actually very simple. It's people. They can't keep secrets, no matter who they work for.

And the only real fix is not to have secrets. The less we classify and withhold, the easier it is for everyone to do their jobs, and the harder it is for someone to break these laws, or surprise others with revelations.

I will be writing my Senators, my Representative, and the President to express my extreme displeasure with the state of our security apparatus. And I suspect I will be voting differently come the next election as well.

I note, however, that with very few exceptions, both of the major parties are filled with people in the pockets of the intelligence industry. If you think you can just switch your vote to the other big party and cause change, you're fooling yourself. You'll have to look much farther than that.

Summary

Imagine for a moment that we're all rats in a maze. In this scenario the NSA is the guy running the experiments and watching from above, with video cameras and digital tape recorders. He can hear just about anything you say, if he wants to, and see just about everything you do. Sometimes you can hide in a tunnel for a minute or two, but the NSA guy knows when you went into that tunnel, when you come out, what you took with you, and everyone you met while you were in there. And if your personal maze happens to be overseas, the NSA guy is actively recording everything you say and do just because he can. And watching and reading it later, trying to determine if you're the right kind of rat or not.

Is that the kind of world you want to live in?

If not, I suggest you tell your elected representatives about it, loudly and clearly. A big backlash is about the only tool we have to change things at this point. A small backlash will only get the noisy ones watched more closely, and eventually their friends will be tarred with the same brush when these systems are misused by those in power.

All of these intelligence gathering systems are begging to be abused. If not by the current administration and people in charge, by those that replace them in the coming years. We will all suffer, and the McCarthy hearings will look like a cakewalk in comparison.

References:

I've read a lot of articles focusing on these issues in the past few weeks. The list below is roughly in time order, and contains links to articles I found interesting, or that I bookmarked for one reason or another. It is far from a complete list of my research, which it would be difficult for me to regenerate at this point, though - and I say this fully understanding the irony - the NSA could probably tell you what I've read in a matter of minutes if they wanted to. There are a lot more articles to read if you dig. Feel free, if you don't mind building a track record on the web that the NSA will be able to follow, of course.
And one from December 2005, still shockingly relevant now:

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