Jeff Toobin takes Edward Snowden down a few notches. Money quote:
These were legally authorized programs; in the case of Verizon Business’s phone records, Snowden certainly knew this, because he leaked the very court order that approved the continuation of the project. So he wasn’t blowing the whistle on anything illegal; he was exposing something that failed to meet his own standards of propriety. The question, of course, is whether the government can function when all of its employees (and contractors) can take it upon themselves to sabotage the programs they don’t like. That’s what Snowden has done.
I spent a decade as a government IT contractor and another five years in commercial IT contracting (which I’m back to). Over the course of my government time I was basically in the same job, but as contracts rebid or companies merged or whatever, I worked directly or indirectly for four different companies. It’s entirely possible that Snowden was in the job prior to March but under a different lead or sub contracting company. The relevant question isn’t when did he start at Booz, since that’s really just a paperwork and billing question, but rather when did he start on site.
Your reader’s suggestion is to call the Ethics Hotline maintained by the NSA? That’s unrealistic to the point of being laughable – what conceivable effect would that have (aside from costing Snowden his job without publicizing the program)? As for the idea that he work with members of Congress, it’s just as silly. Remember, Wyden and Udall were deeply troubled by the program, but couldn’t say anything because they didn’t want to release classified information. The only way that this program comes into the public eye is for a hero like Snowden to take the hit and alert everyone. It seems to be legal, so there’s no crime to report; and yet it’s nevertheless causing a huge public outcry. The case for leaking this material couldn’t be clearer, and I applaud Snowden for his brave act of civil disobedience.
Huge public outcry? We’ll see. But the debate itself and the end of secrecy around this program are healthy developments, it seems to me. Meanwhile, Noam Scheiber compares the missions of Edward Snowden and Aaron Swartz:
More Dish fodder: a post where I hope this is an opportunity to debate if we still need a serious counter-terrorism policy at all; a reader wonders about whether Snowden sought the Booz-Allen job in order to leak; a granular primer on what PRISM actually is; the foolishness of Snowden’s seeking refuge in Hong Kong – or perhaps not; and the inherent difficulty of a full public debate about programs that are labeled secret.
“National security is different from internal matters of the government. We’re dealing with foreign threats here. They’re not allowed to go into that data until they have a warrant signed off on by a judge. That is totally different from the IRS abuses, which I think are very serious, and I think it’s very important for conservatives and Republicans to make that distinction,” – Bill Kristol, agreeing with me and Josh Marshall (on PRISM anyway). And, er, yes, gulp.
Obama says that the NSA isn’t listening to your calls:
But Conor worries that our system of checks and balances is useless in the era of deep state:
Congress cannot act as a check on the executive branch in the way the Framers intended when hugely consequential policies it is overseeing are treated as state secrets. The Senate, intended as a deliberative body, cannot deliberate when only the folks on the right committees are fully briefed, and the Ron Wyden types among them think what’s happening is horribly wrong, but can’t tell anyone why because it’s illegal just to air the basic facts. Our senators have literally been reduced to giving dark hints.
Walt believes this situation “gives those in power an obvious incentive to inflate threats”:
Ambers provides an extremely thorough, acronymn-filled explainer on the NSA program:
What makes PRISM interesting to us is that it seems to be the ONLY system that the NSA uses to collect/analyze non-telephonic non-analog data stored on American servers but updated and controlled and “owned” by users overseas. It is a domestic collection platform USED for foreign intelligence collection. It is of course hard to view a Facebook account in isolation and not incidentally come into contact with an account that is owned by an American. I assume that a bunch of us have Pakistani Facebook friends.
Many bloggers have noted how foolish the NSA leaker was for choosing to hide out in Hong Kong, but:
[T]here is at least one reason it could be incredibly shrewd: Hong Kong’s asylum system is currently stuck in a state of limbo that could allow Snowden to exploit a loophole and buy some valuable time.
Okay, I really don’t understand. Mike Bloomberg wants to regulate smoking and guns and soft drinks and you rail about how “the man just despises freedom.” Yet when the NSA is revealed to be invading communications records on a massive scale and says “trust us, we’re not actually listening to the content,” you’re content to stand by and yawn. Answer me this: Which is the more basic, existential threat to individual liberty: the right to smoke cancer sticks and buy a Big Gulp whenever and wherever, or the right to have some semblance of privacy when communicating with other people? A quick skim of the Constitution makes it pretty clear which of those would have attracted the interest of its authors.
More interesting to me than the much-publicized phone-metadata aspect of PRISM is the way it allows the NSA virtually unlimited access to anything you have done on the Internet. Gizmodo’s explanation of the program is terrifying:
When the NSA monitors phone records, it reportedly only collects the metadata therein. That includes to and from whom the calls were made, where the calls came from, and other generalized info. Importantly, as far as we know, the actual content of the calls was off-limits.
By contrast, PRISM apparently allows full access not just to the fact that an email or chat was sent, but also the contents of those emails and chats. According to the Washington Post’s source, they can “literally watch you as you type.” They could be doing it right now.
In any context other than this, a backdoor into your computer that allowed someone else to view this kind of data would be considered a computer virus, and the person doing it would most likely be a hacker interested in stealing your identity. The government regularly sends people to lengthy prison sentences for doing that. In the wake of the IRS scandal, which we are told was the work of a few rogue government employees, who’s to say that a few “overzealous” NSA employees aren’t reading things they’re not supposed to read?
Yes, today they tell us the content isn’t being viewed, but the key factor is that it CAN be viewed. At any time. And we wouldn’t know.
With this dramatic reveal of the identity of Greenwald’s source, Edward Snowden, it was also revealed that Snowden has been working with the firm Booz Allen since March. So, this off-hand tweet from Greenwald struck me as particularly odd: “@TheStalwart The reality is that Laura Poitras and I have been working with him since February, long before anyone spoke to Bart Gellman”
If Greenwald has been working with his source since February, a month before Edward Snowden began working for Booz Allen, why is that not included in the Guardian story? That seems like a bit of a sticking point.
Conor Friedersdorf posts this chart, and shifts the debate to what seems to me more productive ground. The great opportunity of this moment is to start a debate about how we tackle terrorism as 9/11 gets more distant in the rear-side mirror, as we absorb the fact that the last decade has been far more terror-free than the decade before 9/11, when many of us thought we were living in an elysian fin de siecle. Now may be the moment, in other words, to examine the entire premise of Imaginationland.
Conor argues that “Americans would never welcome a secret surveillance state to reduce diabetes deaths, or gun deaths, or drunk driving deaths by 3,000 per year.” Barro hopes the NSA story will increase pushback against the post-9/11 mindset:
We don’t think about other social ills this way. Nobody says we should have a goal of zero heart disease deaths or zero auto accident deaths, because that would be nuts. We balance the objective of saving lives against other considerations, like cost and individual rights and the fact that bacon is delicious. We should apply this cost-benefit approach to terrorism too. This approach would allow us to say that the phone records dragnet can be a bad idea even if it saves lives. But the big resistance to that analysis doesn’t come from Congress; it comes from the American public.
And the trouble is: you wouldn’t know that from Glenn Greenwald, the Guardian or the NYT editorial board, would you? And yet this is the core issue. Without public support, this war cannot be unwound. Matt Steinglass compares the War on Terror to the Vietnam War:
[C]onventional terrorism poses no major threat to America or to its citizens. But that’s not really what it aims to do. Terrorism is basically a political communications strategy. The chief threat it poses is not to the lives of American citizens but to the direction of American policy and the electoral prospects of American politicians. A major strike in America by a jihadist terrorist group in 2012 would have done little damage to America, but it could have posed a serious problem for Barack Obama’s re-election campaign. For the president the war on terror is what the Vietnam War was to Lyndon Johnson: a vast, tragic distraction in which he must be seen to be winning, lest the domestic agenda he really cares about (health-care, financial reform, climate-change mitigation, immigration reform, gun control, inequality) be derailed. It’s no surprise that he has given the surveillance state whatever it says it needs to prevent a major terrorist attack.
If this contretemps prompts an actual discussion about whether we now need any sort of serious counter-terrorism policy (and anything serious would include searching huge databases for patterns), great. So lets have that debate. Are we now safe enough to end these programs? Are we finally saying we’d be fine with a terror attack that could have been foiled earlier because we prefer that only private businesses collect this kind of Big Data? Are we prepared to back a president who puts liberty before security – especially in the wake of a mass casualty event?
I think Conor has put his finger on the core issue here.
If you read one commentary on the meta-data gathering by the US government, do yourself a favor and read David Simon’s. The creator of “The Wire,” he is not exactly unversed in the intricacies of government power, police work and, er, surveillance. And he, even more than I, is baffled by the tsunami of self-righteous indignation:
Frankly, I’m a bit amazed that the NSA and FBI have their shit together enough to be consistently doing what they should be doing with the vast big-data stream of electronic communication. For us, now — years into this war-footing and this legal dynamic — to loudly proclaim our indignation at the maintenance of an essential and comprehensive investigative database while at the same time insisting on a proactive response to the inevitable attempts at terrorism is as childish as it is obtuse. We want cake, we want to eat it, and we want to stay skinny and never puke up a thing. Of course we do.
I, like Simon, am actually impressed by the government’s efficacy in exploring these electronic trails and patterns. I thought that was largely being done by Facebook, Google or the Obama campaign. I never thought the feds would be that competent.
And when we stumble onto a government program that is clearly legal under the Patriot Act, when not a single case of abuse can be specifically found, when it only looks for patterns and algorithms, and would have to go to a court to do any more, are you not more relieved than creeped out? Wouldn’t you prefer that this stuff be found and isolated from two steps removed? Doesn’t this new Big Data actually increase privacy compared with the pre-FISA era wire-tapping? Not for the first time, Daniel Ellsberg is wrong. It’s not that Obama is not Nixon; it is that the new program is inherently different from previous ones, because of the new nature of the technology. And its sheer scope may actually be a refuge in some ways:
When the government grabs the raw data from hundreds or thousands of phone calls, they’re probably going to examine those calls. They’re going to look to establish a pattern of behavior to justify more investigation and ultimately, if they can, elevate their surveillance to actual monitoring of conversations. Sure enough.
When the government grabs every single fucking telephone call made from the United States over a period of months and years, it is not a prelude to monitoring anything in particular. Why not? Because that is tens of billions of phone calls and for the love of god, how many agents do you think the FBI has? How many computer-runs do you think the NSA can do? When the government asks for something, it is notable to wonder what they are seeking and for what purpose. When they ask for everything, it is not for specific snooping or violations of civil rights, but rather a data base that is being maintained as an investigative tool.
Exactly. And then this point, which seems to elude Snowden and Greenwald:
There is a lot of authoritarian overreach in American society, both from the drug war and the war on terror.
But those planes really did hit those buildings. And that bomb did indeed blow up at the finish line of the Boston marathon. And we really are in a continuing, low-intensity, high-risk conflict with a diffuse, committed and ideologically-motivated enemy. And for a moment, just imagine how much bloviating would be wafting across our political spectrum if, in the wake of an incident of domestic terrorism, an American president and his administration had failed to take full advantage of the existing telephonic data to do what is possible to find those needles in the haystacks.
Just for a moment. Imagine. Now listen to Snowden.
(Photo: haystacks in Oxfordshire, England. By Tim Graham/Getty.)
Fallows isn’t the only one to wonder why Snowden sought refuge in Hong Kong (the young contractor explains his choice above):
Hong Kong is not a sovereign country. It is part of China — a country that by the libertarian standards Edward Snowden says he cares about is worse, not better, than the United States. China has even more surveillance of its citizens (it has gone very far toward ensuring that it knows the real identity of everyone using the internet); its press is thoroughly government-controlled; it has no legal theory of protection for free speech; and it doesn’t even have national elections. Hong Kong lives a time-limited separate existence, under the “one country, two systems” principle, but in a pinch, it is part of China.
I don’t know all the choices Snowden had about his place of refuge. Maybe he thought this was his only real option. But if Snowden thinks, as some of his comments seem to suggest, that he has found a bastion of freer speech, then he is ill-informed; and if he knowingly chose to make his case from China he is playing a more complicated game.
I have to say that Snowden’s apparent dumbness in picking Hong Kong surprised me. Does he not have access to the web? Did he really believe he’d be safe there? Alex Seitz-Wald studies Snowden’s present options:
President Obama says that he is “happy to debate” the tradeoff between security and privacy. The truth is that we probably wouldn’t be having any such debate, and we certainly couldn’t have a fully informed debate, if this program (and others) remained classified. The greatest harm done by the 9/11 attacks was setting the US on a ratchet-track toward “preventive” wars overseas and security-state distortions at home. In withdrawing from Afghanistan and Iraq, Obama has partially redressed the overseas aspect of that equation. (On the other hand: drones.) These leaks, which he denounces, may constitute our hope for redressing the domestic part.
And on the minus side, what about the harm of the PRISM revelations? Again at face value, it seems minimal. American citizens have learned that all their communications may have been intercepted. Any consequential terrorist or criminal group worth worrying about must have assumed this all along.
I am sympathetic to those who believe that the general existence of a program of analyzing global metadata should have been made public. But I doubt meaningful democratic debate about the program would have been possible unless details were given, so that people actually understood what they were debating about. Details like who is targeted, and why, and on the basis of what evidence; details like what abuses might take place, and how they are corrected. Details about the involvement of private sector companies. Retrospective assessments of whether particular acts of surveillance were justified. But once the N.S.A. reveals the details of the policy, its effectiveness diminishes as targets learn how to evade it. I wish there were a solution to this problem but I don’t see it.
“I understand that I will be made to suffer for my actions … I will be satisfied if the federation of secret law, unequal pardon and irresistible executive powers that rule the world that I love are revealed even for an instant,” – Edward Snowden, the leaker of the NSA surveillance program. Video interview with Glenn Greenwald here.
Only 20 percent of people said they believed the government had gone too far in restricting civil liberties in the fight against terrorism, while 26 percent said it had not gone far enough and 49 percent said the balance was about right. In 2011, the share of those worried about losing civil liberties (25 percent) was larger than that favoring more intrusive government approach (17 percent).
Mulling this over as the facts have come in, I remain underwhelmed. Big Data is a core tool for terror prevention and is less dangerous, it seems to me, than many other counter-terrorist programs (like occupying foreign countries, killing people with drones, etc.). Of course, you may believe that we need to end counter-terrorism altogether, because it is a hyped and over-blown threat. But say that in that case – and make the argument that we will be better off without this kind of data-gathering being allowed, and safer. Or that our freedom is worth a few terror incidents.
I’m sympathetic to the latter point of view (see Imaginationland). But then I’m not the president of a country targeted by such religious mass murderers. But what seems inescapable to me are two related things: this data is out there, and the private sector has it. It’s the first real data of its kind to be seeking computer algorithms, not necessarily content of phone conversations. It works, which is partly how Obama got re-elected. And any system of such surveillance is inherently much easier to expose than ever before. There are more Edward Snowdens out there. And they have real power – just a different and asymmetric kind. In the end, the potential for disruption is as great as the potential for knowledge.
When you hear lots of rhetoric about Orwell’s Nineteen-Eighty-Four, it’s worth reminding oneself that its themes are infinitely more dire than our current situation. The danger of the abuse of power is omni-present, but as Matthew Steinglass explains, the Orwellian metaphor is too drastic to explain our present unease:
It’s not the totalitarian fear that an agency that knows exactly where we are and who we’re talking to at all times would find it easier to round us up; we’re not a totalitarian state, and in any case, in modern America, if the police want to arrest you, they’ll be able to find you. The legitimate fear boils down to two things. The first is the possibility of illegitimate pressure based on information we didn’t intend to be made public. Everyone has secrets; everyone has things they’d prefer not be publicly known. … This problem is exacerbated by the fact that when we say “the government”, we are actually referring to huge numbers of different agencies and individuals, each of which have their own interests and will use whatever information resources they get their hands on to pursue those interests.
The second is the fear that a pattern of circumstantial activity will lead us to be falsely incriminated, or to suffer administrative penalties that don’t even require any actual indictment.
But like Ambers, I’m neither shocked nor that outraged. Meta-data is not the content of our phone records.
You’re grossly underestimating the contents and richness of modern metadata. The line between “contents” and “metadata” has blurred in the age of mobile, and the government is taking advantage of that. In 1970s and 1980s, when we passed most of our current government privacy laws, phones were dumb, stationary, shared devices that we used several times a day and otherwise left alone. Today’s phones are “smart” personal devices that are turned on and on us all day. They generate a record of a specific individual’s calls. They also create a constant, moment-by-moment record of our movements. And once I have that, I know where you work, I know where you sleep, I know the church you attend and the doctors you visit. I can also make a pretty good guess of whether you’re gay or straight (are you always at 17th and Q on weekends?). As a few of the articles point out, it appears highly possible that the data authorized by the 215 order includes this kind of location data.
I guess I assumed that was already taking place, and don’t have the visceral reaction many have. I understand the gravity of the worry – and think this should have been an open, discussable program, rather than a super-secret one. With any luck, this new leak – how’s that aggressive plugging of holes going, Mr Holder? – will prompt a review and an update to guard against easy oversight of new modes of communication.
But, sorry, I don’t find such data-mining for national security purposes to be that horrifying. If that’s the price we have to pay for deterring Jihadist attacks, then we should recognize there’s a trade-off. The problem is that we, the public, cannot judge the gravity of those threats and so cannot even weigh the necessity of giving up our privacy. The threat may be far less than we fear. Another reader pushes back even harder:
The United States is still going to be a major world power long after the contemporary jihadi movement is a discredited episode in modern history, even if the country repealed the Patriot Act and stopped all this secret domestic surveillance tomorrow. Second, after acknowledging the potential for abuse in this government surveillance program, Sullivan warns that the “consequences of its absence” could be “terrible.” This claim depends on the belief that jihadism really does pose some sort of horrific threat to American society. This belief is unwarranted, however, provided that dedicated and suicidal jihadists never gain access to nuclear weapons. Conventional terrorism — even of the sort suffered on 9/11 — is not a serious threat to the U.S. economy, the American way of life, or even the personal security of the overwhelming majority of Americans, because al Qaeda and its cousins are neither powerful nor skillful enough to do as much damage as they might like. And this would be the case even if the NSA weren’t secretly collecting a lot of data about domestic phone traffic.
Indeed, as political scientist John Mueller and civil engineer Mark Stewart have shown, post-9/11 terrorist plots have been mostly lame and inept, and Americans are at far greater risk from car accidents, bathtub mishaps, and a host of other undramatic dangers than they are from “jihadi terrorism.”
Meanwhile, Benjamin Wittes zeroes in on the key phrase justifying the court order that granted the NSA access to all Verizon’s domestic phone records:
I’m happy to say that the answer is no. While the harvesting and surveillance of your domestic phone calls were not a part of your original Verizon service contract, the National Security Agency is providing this service entirely free of charge.
The National Security Agency has obtained direct access to the systems of Google, Facebook, Apple and other US internet giants, according to a top secret document obtained by the Guardian. The NSA access is part of a previously undisclosed program called PRISM, which allows them to collect material including search history, the content of emails, file transfers and live chats, the document says.
The program essentially provides [WaPo] the agency with a search bar into Americans’ lives:
To collect on a suspected spy or foreign terrorist means, at minimum, that everyone in the suspect’s inbox or outbox is swept in. Intelligence analysts are typically taught to chain through contacts two “hops” out from their target, which increases “incidental collection” exponentially. The same math explains the aphorism, from the John Guare play, that no one is more than “six degrees of separation” from Kevin Bacon.
The tech companies participating “include most of the dominant global players of Silicon Valley,” such as Apple, Microsoft, Yahoo, Google, YouTube, Facebook, and Skype. Ambers theorizes how this exchange works:
It is not clear how the NSA interfaces with the companies. It cannot use standard law enforcement transmission channels to do, since most use data protocols that are not compatible with that hardware. Several of the companies mentioned in the Post report deny granting access to the NSA, although it is possible that they are lying, or that the NSA’s arrangements with the company are kept so tightly compartmentalized that very few people know about it. Those who do probably have security clearances and are bound by law not to reveal the arrangement.
This arrangement allows the U.S. companies to “stay out of the intelligence business,” one of the officials said. That is, the government bears the responsibility for determining what’s relevant, and the company can plausibly deny that it subjected any particular customer to unlawful government surveillance. Previously, Congressional authors of the FAA said that such a “get out of jail free” card was insisted by corporations after a wave of lawsuits revealed the extent of their cooperation with the government.
Several of those tech companies immediately denied letting the government into their servers. Andrea Peterson explains what this might actually mean: