Enter The Media Martyr

A reader writes:

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.

Another:

Here are the problems I have with Ed Snowden and his choice to leak NSA information to news organizations.

The DoD and classified programs have a variation of the Ethics Hotlines that most corporations have to support employees who have concerns about bad behavior. Snowden could have worked his concerns with this hotline. Barring that, he could have worked his concerns with the members of Congress briefed on the program. He could have even gone to a member of Congress who wasn’t briefed and gotten him or her involved. There were numerous responsible ways to deal with the conflicts he was wrestling with. Instead, he chose to go to the Guardian and the WaPo and data-dump our capabilities to the world. I heard his interview on television and he seems to be painting himself both as a (quite paranoid) martyr and as a latter-day Assange. For somebody who was entrusted with the nation’s most delicate secrets, such behavior is appalling.

Edward Snowden is not a hero. He was a weak man who took an oath to protect the nation’s secrets, found something he felt was contrary to our ideals, and decided to resolve the issue in an irresponsible manner by making the biggest, loudest bang he could. He failed the country he claims to want to save.

Should We Scrap A Zero-Terrorism Policy?

Guns Terrorism Comparison

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.

The trouble is that the only way to find out empirically whether the threat is massively over-stated is to reveal intelligence that perforce has to be secret. There is a genuine trap here. But it could be one in which the administration offers some serious answers. Instead of being entirely reactive, the president should make the case for the necessity of this system, and give us the actual trade-offs involved. I’m for transparency in most things; but I’m not so utopian as to believe that our society can function without some government – and personal and corporate – secrecy.

So instead of polarizing on this, lets debate it. Is Jihadist terrorism an overblown threat? If it is, unwind the apparatus slowly. If it isn’t, is this program better or worse than the practical alternatives? If we are not to occupy foreign countries (dumb) or torture prisoners (dumb and evil) or take out Jihadists by drones (increasingly counter-productive), isn’t mass data gathering about as anodyne a remedy for this ill as you can find?

“This Is Bullshit”

Straw bales, Cotswolds, Oxfordshire, UK

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.)

Dumb Dumb Dumb Dumb Dumb

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:

There are plenty of other countries that have arguably better records on freedom of speech than Hong Kong, and some that might resist extradition. Iceland, which has been favorable to Wikileaks, comes to mind and, indeed, a member of country’s parliament who worked closely with Jullian Assange has already offered assistance to Snowden. But the country’s ambassador in Bejing told the South China Morning Post that under law, a person has to be in Iceland to apply for asylum.

Snowden told The Guardian’s Glenn Greenwald that he does not plan to defect to mainlind China, but that would be an obvious option. The PRC has no extradition treaty with the U.S. and his cryptographic and intelligence knowledge could be hugely valuable to Beijing in its ongoing cyberwar with the U.S. Hong Kong is just a short ferry ride from the mainland and it would probably be easier for Snowden to slip out via boat than through the international airport.

Osnos doubts the Chinese authorities will leave him alone:

It is doubtful that Beijing sees a net advantage in holding on to Snowden as a bargaining chip. Neither side likes exogenous ingredients in complex diplomacy. When the persecuted blind laywer Chen Guangcheng sought refuge at the U.S. Embassy in Beijing, in 2012, it caused nearly as much agitation among American officials as did it among their Chinese counterparts. Xi Jinping has just returned to Beijing from a summit with President Obama, in which both sides sought to downplay differences and emphasize an attempt to accommodate each other’s interests, up to a point. Beijing spends much of its time trying to persuade other governments to send back former or current government officials who have fled abroad.

Without my making any judgment on the virtues of Snowden’s actions, the U.S. government perceives him in much the same light that the Chinese government perceives its cadres who flee abroad in order to publicize wrongdoing or to escape debts or prosecution for corruption. The Chinese state media frequently describes diplomatic efforts to “pave the way for the return of hundreds of government officials wanted for graft” and it has crowed about gaining greater coöperation from the United States.

Josh Marshall spotlights a TPM reader based in Hong Kong who agrees:

There is no political upside for Beijing in allowing Snowden to stay here. They would see him as an incitement to human rights defenders and whistleblowers, a foreign troublemaker who would prompt awkward questions from Chinese citizens about their own heavy domestic surveillance. Barring a scenario in which Snowden escapes Hong Kong and somehow makes his way to, say, Ecuador, I expect the Communist Party will allow the extradition court case to run its course through the Hong Kong legal system and declare that it demonstrated once more the matchlessly smooth workings of ‘one country-two systems’. Diplomatically it can win some brownie points with the Americans.

Why Was The NSA’s Snooping Secret?

Fallows is puzzled:

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.

Eric Posner sees the issue differently:

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.

Yglesias chips in his two cents on the question.

Enter The Leaker

“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.

Some helpful perspective (polling in April of this year) as to the broader impact of these revelations:

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.

Who Is Afraid Of Big Brother?

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.

In the era of the no-fly list, it’s not clear what set of activities are enough to get you to pop up on somebody’s computer screen at DHS and turn your life into a Kafkaesque hassle-dome. Did you visit Qatar, then Pakistan, then Qatar again? Did you spray-paint artistic graffiti on a sidewalk that turned out to be too close to Dick Cheney’s daughter’s house? We don’t know; our security agencies will never tell us. Giving the NSA a vast database of phone calls, and inviting them to search for correlations that might be predictive of terrorist activity, is likely to generate a massive number of false positives.

John Sides notes that “most Americans do not express much anxiety about domestic surveillance”:

 In a recent article (gated), political scientists Samuel J. Best, Brian S. Krueger, and Shanna Pearson-Merkowitz reported the results of a 2007 survey in which they explicitly asked whether Americans were anxious, worried, or scared about “the government monitoring the activities of people like you.”  Only about 30% of Americans said that they were “somewhat” or “very” anxious, worried, or scared.  Best and colleagues note that this is more than some commentators and scholars have suggested.  The question, though, is whether it is “enough” to engender a backlash.  I have not seen comparable questions asked in more recent surveys, but my guess is that there is not a great deal more anxiety.

Many people I admire – from Conor to the Pet Shop Boys – find all this horrifying. I still don’t. Maybe it’s because what’s left of my own privacy was destroyed long ago; maybe it’s because I lived under government surveillance as a non-permanent resident for almost two decades. I had to constantly report where I lived, make sure my visa was always in good standing, and go before all-powerful immigration officials at least every three years. I’m now routinely taken aside for extra interviews whenever I enter the US (I’m told my name is on an Irish terrorist-suspect list, but who knows?) and I had to give the government a sample of my own blood in order to stay here. So apart from my blood, my address, my salary, and almost every detail of my professional and private life, I’ve been a free man. After that, maybe meta-data is never going to terrify me.

Dissents Of The Day

A reader quotes me:

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 PRISM slide crop“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:

Metadata is important.

Your phone metadata tells the NSA who your friends are,and which political groups you associate with.  It tells them where you are, within a quarter of a mile, nearly every minute of the day, as it it no doubt includes every time your phone switches from connecting to one cell tower to another, whether or not you make a call.  It tells them who you bank with, and probably where and when you travel.  It tells them where you shop.  And they never delete it.

BTW, you have no real evidence that it doesn’t tell them the contents of your texts or email.  The disclosed document talks about voice calls, but it is likely there are comparable orders in place for text, email and for other carriers, probably including landline providers.  And the “business records” section of the Patriot Act makes no distinction between the contents of communication and the associated meta data.

It sounds to me like the NSA’s request was simply trying to be pragmatic and limit the information vacuumed up to information that could be stored and forwarded easily by the phone company.  The contents of voice communication is probably a bit too large there; even a one minute call at 64Kbits/sec is 480,000 bytes.  But texts are tiny; 140 bytes for a long one. Pragmatically, they could easily be stored and sent to the NSA.

We could ask Verizon if they send the contents of texts to the NSA.  If they don’t/can’t answer, there’s your answer; the law doesn’t seem to require that they lie, simply that they not answer at all if asked.

Another:

I’m pretty shocked by your blasé attitude about the revelation that the government in all likelihood maintains a database of when (and in many cases where) every single US phone call in the last seven years was made, and all the phone numbers involved.

It’s possible that there’s a good case to be made for all of this – but shouldn’t that case have been made first? I’m all for secrecy when it’s necessary for an investigation. But in this case, what could possibly be gained, operationally, from keeping this program a secret?  If the case for wholesale surveillance is so strong as everyone is now belatedly claiming, why were they so afraid to make the case publicly?

I think the answer is fairly obvious: Americans would never stand for it. And that’s a fundamentally illegitimate reason to keep something classified.

If you were wondering where the true scandal of the Obama administration is – the one that really belongs at the president’s feet and nowhere else – it’s here. Even if no laws were broken, and even if this is truly an “indispensable” tool in the fight against terrorism, hiding the existence of something like this for no reason other than to avoid public outrage has no place in a democracy.

On that last point I agree. The only justification for it is the prevention of Jihadist terrorism. Personally, I’m not that troubled by this kind of oversight. But why not debate it openly? It might even gain some support.

The FBI May Have Your Phone Records, Ctd

Stephen Walt responds to my initial post on the NSA-Verizon story:

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:

To acquire such an order, the government does not have to do much—just as it doesn’t have to do much in a criminal investigation: It merely has to offer, in pertinent part, “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation . . . to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.”

I’m trying to imagine what conceivable of facts would render all telephony metadata generated in the United States “relevant” to an investigation, presumably of the bombing. This would include, of course, all telephony metadata that, as matters turned out, postdates the killing of one bomber and the capture of the other—though there’s no way the government could have known that when the application was submitted. And it would also include all telephony metadata that postdates the government’s conclusion that the Tsarnaev brothers were apparently not agents of any foreign terrorist group. But even if this were not the case, how is it possible that all calls to, say, Dominos Pizza in Peoria, Illinois or all calls over a three month period between two small businesses in Juno, Alaska would be “relevant” to an investigation of events in Boston—even if we assume that the FBI did not know whom it was investigating in the Boston area and did not know whom that unknown person was communicating with?

Orin Kerr’s answer:

If the [court] order is what it appears to be, then the order points to a problem in [the US legal code] Section 1861 that has not been appreciated. Section 1861 says that the “things” that are collected must be relevant to a national security investigation or threat assessment, but it says nothing about the scope of the things obtained. When dealing with a physical object, we naturally treat relevance on an object-by-object basis. Sets of records are different. If Verizon has a database containing records of billions of phone calls made by millions of customers, is that database a single thing, millions of things, or billions of things? Is relevance measured by each record, each customer, or the relevance of the entire database as a whole? If the entire massive database has a single record that is relevant, does that make the entire database relevant, too? The statute doesn’t directly answer that, it seems to me. But certainly it’s surprising — and troubling — if the Section 1861 relevance standard is being interpreted at the database-by-database level.