The Surveillance State Is Here To Stay

“Everything has changed”, they said after the 9/11 attacks. And indeed everything did. Congress immediately discarded a number of civil liberties in the Patriot Act, renewed with only a couple of small changes ever since. Congress then tacked onto the National Defense Authorization Act a provision for indefinitely
retaining even Americans in military prisons without trial for as little as suspicion that they might be associated with a terrorist. And, as Edward Snowden revealed last June, the National Security Agency began years ago to spy on just about everyone.

But seven months after Snowden began the release of secret documents, the President, saying that a “fresh examination of our surveillance programs" is in order, outlined in mid-January the changes he hoped to make. There was a moment of surpassing irony when he said at the conclusion of his 5,500 word talk, “the reforms that I have announced will point us in a new direction” and “this debate will make us stronger”, considering that the only reason there is a debate, the only reason for that fresh examination, is Edward Snowden, whom he would reward with prosecution under the Espionage Act were he to return.

Obama, of course, wants us to believe he had intended to make changes all the while, saying, “I indicated in a speech at the National Defense University last May that we needed a more robust public discussion about the balance between security and liberty”, but along came Snowden just a month later with an “avalanche of unauthorized disclosures” to take ownership of that hypothetical debate. In fact, in that speech, which was largely about actions abroad against the Taliban and al Qaeda and the use of drones, he makes no mention of public debate or discussion. Even if he had, that would have been said four and a half years into his presidency, with his knowing all that while that NSA spying had gone far beyond anyone’s understanding, yet he had taken no steps toward reform.

Most of the rest of Obama’s “changes” amount to gestures of greater transparency and “additional restrictions” on current practices. Save for an order to no longer spy on foreign heads of states, none of the surveillance programs have been ended.

The President will not halt the most controversial issue for the America public — the bulk capture and storage of years of everyone’s phone connections — the preposterous overreach by the NSA that it claims is authorized by Section 215 of the Patriot Act. See if you can find that authorization in that section which allows the FBI’s national security branch (not the NSA), to “make an application [to certain courts] for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation" of a United States person "to protect against international terrorism or clandestine intelligence activities". Instead of what you would expect “business records” to refer to — a company’s financial and accounting data, purchasing records, contracts, personnel files, etc. — NSA (a) reached past all that to grab data that pertains to the phone companies' customers, and (b) obtains that not for the specific investigation of an individual person as the statute prescribes, but the phone records of the entire nation.

Concerned that “government collection and storage of such bulk data…creates a potential for abuse”, the president adopted the recommendation of the panel he appointed to move the data to an entity separate from the NSA or to leave it with the phone companies.

But Congress has already been heard from. Immediately after the speech Dianne Feinstein (D-Ca), chair of the Senate Intelligence Committee, and Mike Rogers (R-Mi), chair of the House counterpart, raced to the Sunday talk shows — Rogers to two of them. The two unabashedly root for the NSA program. The adversarial role of their oversight committees is not at all in evidence. Both have shown themselves to be undisturbed by trampling the Fourth Amendment by their advocacy of total surveillance. Rogers immediately declared the President’s plan to move the phone data out of NSA as “unworkable” and Feinstein tells us “that's a very difficult thing”.

Neither show any sign of understanding the technology. Both know nothing further than to think that if the data rested with the phone companies, the process of tracking phone calls across the several companies would slow to a crawl with precious time lost in the face of a terrorist threat. “The whole purpose of this program is to provide instantaneous information to be able to disrupt any plot that may be taking place," Feinstein said on NBC's "Meet the Press, fixated in the belief that only NSA’s consolidated data warehousing is capable of speed.

Indeed, in all this time since Snowden, neither the policymakers nor the punditry nor the mediocrities invited onto television news programs exhibit any technical savvy. For example, the folks who write editorials at The Wall Street Journal betray a complete misunderstanding. The day before the President’s speech they wrote:

“The truth is the NSA needs to organize this vast pool of information about phone calls for the database to be searchable and thus usable. Making individual requests one by one is too cumbersome in urgent cases and will inevitably result in the NSA missing important connections…Instead of a single repository queried by a few professionals subject to oversight, sensitive data would be spread over an expanding number of private companies with their own interests and security gaps.

Where to begin? The data is organized and is searchable. It is not just piled up like sawdust tailings at a lumber mill. The only way it can be searched is one-by-one (and the data was used for close to 300 searches last year). One must begin by accessing the single phone number of a suspect and trace outward from there. The edit writers seem to think that an algorithm can just be turned loose to identify who is a terrorist in a sea of nothing but phone numbers, timestamps and call durations. And about those “companies with their own interests and security gaps”. They are the phone companies which have always collected and stored the phone data, apparently without mishap, and without which the NSA would have nothing.

The episode reveals government and media personages only too ready to venture their opinions without thinking to seek out a computer systems geek to explore what other possibilities there might be. As a result, their perceptions have calcified and they all simply repeat what they’ve heard others say.

Worse than ignorance is propaganda. To persuade the American public that spying on them is a good thing, four principals have now put forward the same bit of mythology, that the 9/11 attacks could have been prevented had the phone metadata system been in place because we could have found that a single call to a safe house in Yemen was from a phone inside the United States. First came Feinstein, who told this story in a Wall Street Journal op-ed. Then followed NSA chief Gen. Keith Alexander, reciting it on “60 Minutes”‘s love letter to the agency. Just recently, Mike Rogers on CNN’s “State of the Union” interview show, and now even Obama advanced this canard in his reforms speech. We have already made a mockery in this article of the claim that FBI or CIA or NSA would have zeroed in on this one call, given the infamous failure of the intelligence agencies to coordinate with each other and “connect the dots” before 9/11. It was ultimately determined that the call was made by 9/11 hijacker Khalid al-Mihdhar. What Feinstein and the others should be telling us is that he was already known to the intelligence agencies as an al Qaeda operative, he was known even to have a visa to enter the U.S., but the CIA forgot to put him on a watch list.

Considering that the facts are out there, what does this say about the deliberate spreading of misinformation by government figures from the president on down to persuade the public to accept total surveillance?

That several of Obama’s proposed reforms need Congress to amend laws, it is clear that this Congress will not oblige, beginning with the padlocked minds that sit atop the two intelligence committees. That is why we expect no substantive change and foresee a United States that has decided on permanent surveillance of all its people, leaving the Fourth Amendment as a quaint crocheted artifact to hang on the parlor wall.

Lost in all this ignorance is an “elegant” — to use the scientific and computer world’s appreciative term — solution that makes the problems go away and would be accepted by the public without reservation.

There is no need for everyone’s phone data to be captured and centralized by the government. It can be left at the phone companies. They would be asked to add another year or so to their data retention schedules and have already complained about this, but we’d only be asking them to get their patriot act together. And the government could compensate them (at far less cost than NSA’s redundant storing of the data).

A hint at how this would work could be before you right now. If you are a multitasking computer user, you might have several instances of your browser on your screen with each connected to a different source. That should tell you that even basic consumer computers have the ability to reach out into the world and make multiple connections.

NSA could certainly do the same, but in their case by creating software that connects to all the phone companies. When the need arises to investigate a person of interest, (and with authorization by the FISA court, its judges being on call the clock round), NSA could rapidly patch into the phone company links and — at electronic speeds — build the web of connections that we are told is so essential to protecting America from terrorists. The difference is that NSA taps into the public’s phone records only for the data emanating outward from that single target; they no longer would need possession of a massive database of billions of our phone calls.

Those thinking about this might recognize a problem: When that software encounters a target’s call to a number owned by another phone company, what then? The answer is that the software would send that request back to the NSA hub and the hub would send it on to that second phone company. The software would handle the rapid fire interconnects of calls that bridge phone companies in order to build the web of interconnects at speeds so near to NSA’s on its in house facility as not to matter.

This method was in fact proposed to NSA by its own technicians in the late 90s, as we covered in this story. It tells of that same sort of software created by a unit of NSA at a reported cost of $3 million, but spurned by an NSA that instead chose to let $280 million in contracts to big corporations who proceeded to go far over budget and sent a bill to taxpayers of over $1 billion.

Neither the heads of the congressional intelligence committees nor the president have shown any awareness whatever of the history of the road not taken that beckons now, even though it was covered recently in a lengthy Wall Street Journal piece.

Truth is, the U.S. and NSA should secretly scrap the whole program.

First, the NSA has not come up with any proof of disrupting a terrorist plot that owed to the phone metadata. When Gen. Alexander first testified before the Select Intelligence Committee, he said more than 50 terrorist attacks had been disrupted by the NSA program. He pledged to come up with "a list" in a matter of days that would support his claim. He never did. Weeks later, Sen. Patrick Leahy (D-Vt), chairman of the Senate Judiciary Committee, was handed such a list — classified of course — at a hearing last August 1. He said the list did not show that “dozens or even several terrorist plots” had been thwarted.

The panel that made recommendations to Obama found no real evidence that the phone data program had stopped a terrorist attack. Yet officials continue to speak vaguely of plots subverted by the the phone data program, offering no examples. Rogers, in that CNN interview, could not come up with any instances and resorted to saying “it stopped hundreds of thousands of FBI man-hours chasing down radicals”.

Second, after all that has come out about NSA spying on the citizenry, what terrorist in his right mind would use anything but a throw-away prepaid cell to plot the next attack. The needle has left the haystack.

That’s the casualty of NSA’s ill-considered excesses and of Snowden’s revealing them. Had NSA adopted the sensibly restrained and technologically superior methods we just reported, the spying on Americans’ phone use would not have been an issue.