Fear and Loathing and the NSA

Steve Wildstrom / August 21st, 2013

In the couple of months since the flood of revelations about National Security Agency internet snooping was unleashed by Edward Snowden, we have seen a great deal of knee jerk reactions on all sides punctuated by an occasional burst of sanity. We have seen some genuinely frightening things, such as the NSA is collecting metadata on every phone call in the U.S. and the hints that the government is trying to get the master keys from services that offer encrypted email. We have even seen the odd moment of black comedy, such as the announcement by The Guardian that UK officials, in some strange bit of kabuki, had forced the staff to smash hard drives containing one of many copies of material obtained by Snowden.

But we have reached the point where some people are beginning to suffer what I can only call NSA derangement. The best example to date was a post by founder Pamela Jones that she was shutting down a blog called Groklaw because of NSA snooping. She wrote:

And the simple truth is, no matter how good the motives might be for collecting and screening everything we say to one another, and no matter how “clean” we all are ourselves from the standpoint of the screeners, I don’t know how to function in such an atmosphere. I don’t know how to do Groklaw like this.

Groklaw did yeoman service for years covering every detail of the epic litigation in which a relatively obscure software company called SCO tried to claim that it owned the UNIX operating system and was entitled to vast damages from IBM, Novell, and countless others. After SCO lost on nearly all its claims and went through bankruptcy and liquidation, the lawsuits linger with a sort of half-life and, until today, Groklaw lingered with them (Jones actually announced she was killing Groklaw in 2011, but it refused to die.) But Groklaw is of no more interest to the NSA than is, say, Tech.pinions. To think otherwise is a bit megalomaniacal.

But the fact that someone as knowledgable about the law and technology as Jones (who does, it should be noted, have a somewhat conspiratorial frame of mind, especially where Microsoft is concerned) goes this far off the deep end is an indication of the impact of the NSA story. She’s hardly the only one. Keith Devlin, an eminent Stanford mathematician, has been filling my Twitter feed with over-the-top political posts, including the claim that the U.S. has become East Germany, a state that not only spied on its citizen’s in far more offensive ways than anything we have heard about in the U.S., but regularly murdered them:

devlin-tweet-1

On an even odder note, he suggested that he might face prosecution if a terrorist enrolled in his Coursera “Introduction to Mathematical Thinking” course, since knowledge of math might allw them to become codebreakers (or something):

devlin-tweet-2

When really smart people start talking like this, it is time for everyone to stop and take a deep breath. I am horrified by what we have learned about the extent of government spying on its own citizens and I am disgusted by knee-jerk defenses from the likes of Senator Diane Feinstein (D-Calif.) and Representative Peter King (R-NY) that it’s all OK because it is just protecting us from terrorists. Some perspective is desperately needed.

At one level, what the government (NSA is convenient shorthand, but it is much broader than that) is doing has caused some fundamental changes in thinking about the relationship between citizens and a democratic government. But unless you deal in leaks of classified information (an important unless, but one beyond the scope of this article), the effect of knowing what you now know on your daily life is minimal to non-existent. For example, I have been preaching for 20 years that email should not be regarded as secure or even private. The fact that the NSA might snoop on it changes very little–and nothing that has come to light shows that the government routinely reads domestic email. I don’t like the government collecting my call data, but it’s not going to change my behavior.

What we need right now is a lot less hysteria and a lot more pressure for a serious political debate on striking a new balance between legitimate investigative needs and the need for privacy and freedom from intrusion, and moves the needle a long way back toward privacy and transparency. Although the leadership of Congress is generally standing behind government spy programs, there is broad support for change among the congressional rank and file of both parties.  This could be a rare moment when it is actually possible to get something done, but only if we focus on what is real and what is important, and avoid sinking into wild charges and paranoia.

 

 

Steve Wildstrom

Steve Wildstrom is veteran technology reporter, writer, and analyst based in the Washington, D.C. area. He created and wrote BusinessWeek’s Technology & You column for 15 years. Since leaving BusinessWeek in the fall of 2009, he has written his own blog, Wildstrom on Tech and has contributed to corporate blogs, including those of Cisco and AMD and also consults for major technology companies.
  • peter

    Godwin’s law is certainly applicable to Internet discussions on data collection and NSA overreach, so I will not go there.

    However, if you Google “fbi agent abuse database” you will quickly find a long list of articles on police officials caught abusing databases for personal purposes (cyber stalking ex-wives/girlfriends seems popular). None of that stuff is very funny and those guys only had a fraction of the data that other agencies have access to.

    It also raises the question; who else is in a position to use those databases for their own purposes? If individuals like Snowden and Manning were able to walk off with masses of data without the NSA or military noticing, one has to assume that a determined adversary (say Russia or China) should have no difficulty getting a ‘man’ on the inside (I’m showing my age, I used to read John Le Carre). In short, after all the money spend to build and operate all of that infrastructure, do we actually believe we are any safer?

    • steve_wildstrom

      There were a lot of issues I skipped over in my effort to keep that post focused (and under 1,000 words.) One that there has not been enough discussion of is the evidence that the NSA has really bad internal information security. Its controls on who gets to see what are way too weak. (I know sysadmins are a special case, but still….)

      Another is the claim, so far not much discussed and definitely not proved, that information collected by the NSA is leaking into ordinary criminal investigations. If true, this would be deeply disturbing (and also would put in jeopardy large number of existing convictions that might turn out to have been based on tainted evidence.

      • Larry Haines

        I imagine they would move to normal criminal cases given time. Might be too costly or time consuming to use for chasing down criminals, but will probably reach it someday.

        Some articles are claiming proof of prism being used for Kim dotcom. So maybe for big cases they already use prism and data mining for. Wonder if NSA is allowed to data mine bank transactions or not as well.

        • steve_wildstrom

          Whether Prism and related programs by themselves are constitutional, the use of any evidence collected by them in a criminal case violates the Fourth Amendment by even the most crabbed interpretation of the constitution. There’s a legal doctrine known as “the fruit of the poisonous tree” that deems inadmissible any evidence obtained as a result of an illegal search, even if it is gotten as a second order effect. What may be allowable for intelligence purposes is not allowable for criminal purposes: You need a wiretap or CALEA warrant.

          If, in fact, NSA data collection seeped into criminal investigations–and at this point we have only some rather vague suggestions that it did–thousands of convictions might be in jeopardy.

          • Larry Haines

            Well one document released showed how a judge was angry at their searches being too broad and forced them to refine their methods. If searches in criminal cases happened during that time, then better hope of case thrown out.

            But right now congress, president, and FISA court approve of prism and how it is handle. Would be hard for a defense attorney to argue for a case dismissal.

            I mean for the NSA to really go after american activity in crime, they would definitely get one of their private warrants, so its a legal search. So legal evidence, unless you can show mistakes were made. But its so top secret would be impossible to show at least in open courtroom.

            I would just file an appeal over how secret the whole thing is, no one could get a sense of justice from the court and the legal system.

          • steve_wildstrom

            Even if we assume, for the sake of argument, that all of the NSA’s surveillance of “U.S. persons” was legal for intelligence purposes, that does not make the evidence gathered admissible for criminal purposes.

            The allegation was made a couple of weeks ago that data gathered by the NSA was making its way into DEA and IRS investigations and that those agencies were obfuscating the source of their information to get legal probable cause to collect the evidence by other means. If true, this would hopelessly taint any convictions derived from that information. And this would have required a conspiracy that a lot of people knew about, to it would be unlikely to stay secret now.

            Also I think the government would have an extremely difficult time claiming a state secrets exemption in a trial of a matter with no credible relationship to terrorism. Usually when the government attempts to withhold classified information in any sort of criminal case, the judge offers the prosecutor the choice of either producing the evidence or dropping the case. Courts tend to take these things very seriously. (This is why cases that depend on classified evidence almost always end in plea bargains or dismissals and very rarely trials in open court.)

            We haven’t heard anything further about these charges and I really don’t know what to make of it.

          • Larry Haines

            Okay, sorry the miscommunication, too many NSA leaks.

            I found those articles you were talking about.

            Yeah, I doubt any more interesting information will be released over it. Except in normal court processes if more defense attornies raise stink over it. Suppose we will see then how it will be handled.

            But seriously if there was a crime it will always be hard to avoid it. Best hope besides having a defense attorney is to decriminalize pot and some drugs. If that doesn’t happen most people will still feel the people caught even with NSA help should be punished.

            Personally, even if the case gets dismissed the person would be too rattled to do drugs again for the most part. So I wouldn’t be on board for automatic incarceration.

            (Serious note) Only grade schoolers call the pot dealer over an unencrypted phone line anymore anyways.

  • Kenny

    Having a government with the capacity and tools to know everything about your life, just by a quick search on a computer is a great danger, but the greatest danger of all this is that we can never take back what we’ve give up a, and this is where we are today.

  • I always like to help the NSA.
    plutonium implosion trigger

  • qka

    I don’t like the government collecting my call data, but it’s not going to change my behavior.

    Until the day that one of your frequent industry contacts comes under investigation. The Feds will do a metadata analysis of his communications, and your name will turn up, and all of a sudden you will be included the investigation. As the Feds do not trust journalists, and even less bloggers, who knows how much useless explaining you may have to do.

    It has already happened.

  • Justin Hebert

    Just wrote something similar. The US has a long history of government overreach during wartime, and we are still fighting the “war on terror,” therefore the overreach continues. Couple that with a dysfunctional political system whereby voters punish candidates who they perceive as weak on defense, and you have a recipe for continued intrusion. What’s the answer? I honestly don’t know, but I hope someone does.

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