So, first, a sanctimonious tweet from Noah Schachter on this latest "revelation":
Every reflexive defender of the NSA needs to take a really, really hard look at themselves tonight. http://t.co/PTwQX420CF— Noah Shachtman (@NoahShachtman) July 6, 2014
I don't know what it is about Twitter that makes some people feel as if they are in a prayer group where members are supposed to have come-to-Jesus moments, or in a self-criticism circle in the Soviet Union or China, but there it is -- pious finger-wagging and demands for soul-searching.
OK, I took a hard look, Noah, and I still don't believe in Snowden, I don't believe in the hack or its merits, and I don't believe this latest leak is the horror you imply. Not at all.
Let me explain my thinking on this.
Surveillance is Normal Law-Enforcement Activity Like the Cop on the Beat
For me, the NSA's surveillance activities mainly devoted to monitoring foreigners and mainly oneline are something like an old-fashioned cop on the beat in real life -- it's merely that all our lives are transposed online now, so people forget what materially made up the surveillance of the past and what it meant -- in cyberspace, it always seems more scary and amplified and "Orwellian" but it isn't.
As this real-life cop walks along, he looks at storefronts, homes, cafes, schoolyards, parks. He notices people who are always part of the scene who are "normal," he notices things out of the ordinary, he notices who is hanging out with whom, he notices double-parked cars or cars parked in no-tell motels or kids hanging out on stoops or whatever he notices. He doesn't need a search warrant for this surveillance; it's inherent in his job of walking the beat. He looks; it is his job to look and watch.
When he gets to some actual incident or complaint or crime going down, then he might need a warrant, or have to exercise judgement to act to the extent he can without a warrant. But he doesn't need a warrant for the glance at every little flower bed, dog, old lady, hooded teenager playing basketball, Muslim prayer hall. It's all part of the scenery; it's what goes against the usual pattern of activity that he knows from walking the beat that requires a greater look.
Let's say the government has to find out somebody's phone number in another city. In the old days, they'd take that city's entire phone book, get everyone's numbers, their street addresses and the other information of who lived next to whom, if they got into it. But they didn't need to look at all that tome of information to do the job of trailing the suspect.
Or let's say they got a warrant to tap a phone line of a suspect, say, a mafia don, or they got an informant to wear a wire. They might along the way hear from wives, girlfriends, kids, babysitters, grocers, doctors who would exchange information or numbers of "content" that would be irrelevant to the case. You could huff and puff and say all those green-grocers and psychiatrists and priests on the line with the mafia kingpin were having their privacy grossly violated, but the police didn't need to look twice at them; they weren't the target.
Manual vs. Automated Collection and Intent
Ken Roth, head of Human Rights Watch, a prosecutor in a previous life (he worked with Rudolf Guiliani, of all people), notes this phenomenon in his argumentation in favour of Snowden -- that sure, prosecutors and detectives might get a lot of phone numbers and information as they pursue a suspect, but it's manual. It's not massive and not automated.
Except, to me, the distinction between manual or automated is not a material one that instantly speaks to intent or motivation -- as it does for Snowden and the Snowdenistas from Greenwald to Bruce Schneir on down -- because intent really does matter, and is not automatically confered by machine capacity.
If the government dragnets communications, I don't see that as an instant violation or fault by definition; first, seldom has the largeness of the "dragnet" claimed in these Snowden leaks ever been the case (and isn't with this story, either), and second, the government doesn't look.
But for the Snowdenistas, the hysterical hypothetical, the edge-case the "what if" is the violation, and they think capacity=action.
Yet the NSA doesn't act on the lion's share of this collected data.
That's important to me. They don't drill down and gratuitously make files and cases and pursue people mindlessly for no reason just because they are caught up in the net designed to pursue another suspect.
So these people with their anguished love lifes and baby pictures and weddings that Bart Gelman is so worried about in fact have had their privacy far more outed by him than the NSA. The NSA never said, "Hey, we have all these baby and wedding and high school graduation pictures, let's post them." They have, instead, files designed to pursue suspects. Along the way, the old lady crossing the street on the cop's beat, the doctor calling the mafiosi's wife in the prosecutor's example, and so on, are included in the files. It doesn't harm them because they are not targeted. It's not about them.
If these pictures and communications were on public social media, no harm no foul. If you don't like being slurped up by any entity out there, good or bad, don't put things on the Internet.
If they are from private emails or DMs, it's still no smoking gun of violation or proof of ill intent. Because the government doesn't look, doesn't pursue, doesn't randomly and arbitrarily go after people.
No, This is Not Like COINTELPRO
If we had COINTELPRO-like data, where we could see the government relentlessly targeting, say, all the girlfriends and wives, past and present, of the Tsarnaevs or some other suspect, trying to squeeze them or trying to set them against each other, we could take a look at it and say, this might be a violation of civil rights.
But is it? What is, and what isn't? Since when can you really expect exemption and a pass if you befriend or marry or have a relationship with a terrorist?
You can't! And it's not only unrealistic to expect otherwise; our national security might depend on something you in fact know about this person, and you should help. If you think the privacy of you and your baby pictures trumps the needs of other people to keep their legs attached to their bodies, I'm sorry, many people will believe otherwise. And so will the government -- no one but the Washington Post and the NSA knows any of these names, and unless Washpo leaks it, there's no case.
How Russian and American Surveillance Differ
And that's just it: the Russian version of these leaks always involve maximum, public damage not only for the target but anyone within striking distance. Unlike the NSA, the Russian kind of operation spies on opposition or Muslims or foreigners or anyone suspicious, then spills out their conversations in the state-run media to maximum ruinous effect. You don't know what Merkel said on her phone ostensibly bugged by the NSA; you do know what Toria Nuland said on her phone bugged by the FSB. Difference. And an important one.
Serious Reasons for NSA Surveillance!
What's extraordinary about this story of the solipsistic and sectarian Bart Gelman, is this:
He tells us about some really serious events:
o fresh revelations about a secret overseas nuclear project
o double-dealing by an ostensible ally
o a military calamity that befell an unfriendly power
o and the identities of aggressive intruders into U.S. computer networks.
Good Lord, those are all very serious things. All of them merit watching, and that means targeting suspects involved in them. If along the way, the photo of a toddler in a bathtub or a love poem from a girlfriend gets slurped up, it is set aside; so what? It is not looked at; it is not published; it is not used to blackmail. And that matters.
There is no evidence it was used to harm those people or violate their human rights. And there were valid, serious reasons for watching these events!
What was the COINTELPRO method repudiated in the past? Gathering that kind of info, then using it to extract confessions or cooperation from the original target. So if there was a mistress, it might be leaked to create stress and trouble with a wife, to disrupt the subject or get him to talk.
There is no evidence that any of this side information was used in any way to get anything out of the original targets, i.e. as blackmail or to sow confusion or make trouble with dirty tricks.
Bart Gellman -- and by extension Noah Schachtman -- seem to imply that the mere existence alone of a medical report or a kid's picture in this email snag is itself a wrong-doing. But it's not. It hasn't been used; it hasn't even been looked at likely until Snowden decided to try to play gotcha with it and the Washington Post wrote about it.
But oh, they say couldn't such passively collected data, not used now, be used at any time in the future? Isn't that the danger, they have a "collect 'em all" mentality and this will result in "turnkey tyranny" -- Snowden's cunning little term?
Well, no, because they can't demonstrate that this is happening. And if they are tracking a suspect involved in a secret nuclear project, sorry, but I think they get to keep the collection of wedding and graduation messages and pictures in case they do become relevant, even if nothing was relevant now. Because the matter is that serious.
My Boyfriend the Taliban
Now, let's look at the star of this story, the unfortunately lovesick woman who fell in love with an Afghan man who brought her tea in bed and made love to her despite the restrictions of their religion but who ran off to join the Taliban.
He then responded sternly to her lovesick messages and was going to marry her only if she agreed to get their families' approval and let him control her Facebook (!). And she's worried about the NSA having a passive stash of her messages when she has a future husband like that who is much more of a real problem?!
Come on people, let's get a grip here. This guy is joining a deadly movement who have killed most of the civilians in the war in Afghanistan, not to mention our troops. They have a deadly oppressive way of life in which women are mere chattel kept in sacks. We're supposed to worry about some pictures and emails when it comes to something like this? Why? I don't see any compelling reason.
This woman -- who now has a good job with the Australian government (!) is weeping that these files still remain with the NSA. I guess she found this out because Gellman told her? How else would she know? Well, that's what happens when you have the poor judgement first to try to get over your shattering divorce by suddenly converting to Islam, then falling in love with and pursuing a guy who is joining the terrorist organization of the Taliban, our enemy.
Sorry, I'm going to do the unthinkable and judge someone who has done that because the Taliban kills people.
If anything, she should have said to government agents, "How can I help?" That this doesn't even enter anyone's minds in this discussion is proof of how low civic culture has fallen or how shredded it is -- no one thinks that's the right thing to do, although the Taliban is a movement that not only kills our soldiers, it kills most of the civilians in the war and oppresses women, and there's a place where this woman's privacy fits -- which is not trumping the need to oppose such a deadly movement.
P.S. Given that we would never have heard about her were it not for Snowden and Washpo, whose the real eroder of her privacy now?
Again, could you remind me why we're worried about some love poetry or somebody's prescription when THAT is what is at stake? Murderous groups that kill people, including our soldiers? Why is there no sense of balance here?
Good Deeds That Result from Dragnets
I notice that once again, as with all Snowden stories, there is an extrapolation from this stash of stuff -- which involves X suspects and the Y larger circle around them as "everyone" and "the government in your email stealing your toddler tub pictures."
But it's not everybody, it's just those related to these suspects. Was this for a good cause?
So...Bart's going to be a swell guy and not leak the details of those worrisome affairs I just mentioned above, but then he says there are certain achievements from this program based on the "dragnet":
Months of tracking communications across more than 50 alias accounts, the files show, led directly to the 2011 capture in Abbottabad of Muhammad Tahir Shahzad, a Pakistan-based bomb builder, and Umar Patek, a suspect in a 2002 terrorist bombing on the Indonesian island of Bali. At the request of CIA officials, The Post is withholding other examples that officials said would compromise ongoing operations.
So, good! Sounds like the program does what it is supposed to -- catches bad guys! We're supposed to be upset that it has tens of thousands of irrelevant emails in the process? When was the last time you read all your email archives? The NSA hasn't read them, either.
Are We Losing Benjamin Wittes?
Sounds like the data it has to dredge on the way to that may be larger than what libertarians like Cathy Young are comfortable with -- she is re-tweeting Noah's pious admonition -- and who knows, we might lose Benjamin Wittes on this one, too, which would be sad, but he's wavered before on other issues so it stands to reason.
But realistically, I can't get too worried -- bad guys are caught, other bad guys are in the target sites, and the toddler pictures and the girls in skimpy shorts are set aside and marked irrelevant, obviously.
Did Snowden Know He Had Content and Did NSA "Lie"?
Now here's where Gelman and co. get particularly melodramatic, and this is what is being regurgitated now with great glee and faux alarm by Mother Jones and all the rest:
In order to allow time for analysis and outside reporting, neither Snowden nor The Post has disclosed until now that he obtained and shared the content of intercepted communications. The cache Snowden provided came from domestic NSA operations under the broad authority granted by Congress in 2008 with amendments to the Foreign Intelligence Surveillance Act. FISA content is generally stored in closely controlled data repositories, and for more than a year, senior government officials have depicted it as beyond Snowden’s reach.
The Post reviewed roughly 160,000 intercepted e-mail and instant-message conversations, some of them hundreds of pages long, and 7,900 documents taken from more than 11,000 online accounts.
Well, the reason why anyone might reasonably suspect that Snowden didn't get content out of all his numerous files and slides about metadata and such is because, well, he himself never mentioned it nor did his scribes.
Therefore it's not necessarily that NSA officials are "lying" when they say they believed he didn't have access to this -- it's a perfectly normal and reasonable assumption. Because Snowden himself gave no indication of this.
The breathless and dramatic haste with which Gelman and others rush to say the government is "lying" is totally unseemly; they themselves are lying if they themselves misportayed this situation all this time. Gelman's disclaimer that "time was needed for analysis" doesn't explain why for a year, nothing was ever delivered on content.
These large numbers are supposed to scarify and alarm, although tens of thousands of discrete messages could resolve down to the 400-500 the NSA said it targeted in their recent "transparency report". Think of the hundreds and thousands of emails or IMs or DMs or texts you send in a day. It adds up. It might be necessary to grab that many pieces of communications to track someone. I don't see that large numbers in and of themselves constitute some smoking gun of abuse.
Again, a reminder: we don't see that any of this was used to harm people unrelated to targeted investigations, or used in dirty tricks against the suspects.
What Constitutes a Dirty Trick?
And frankly, I'd like to have a separate debate on what constitutes a dirty trick. The pious hacker set thinks only they have the right to hack, DDoS, spread information, and use social engineering on other people, and if *gasp* the government uses any of these methods, some in a gray area and some possibly illegal, why, that is such a horror.
This is moral quandary, of course, along these lines: which you rather risk bombing a country developing the nuclear bomb that it might use on its neighbours, or would you rather risk making a virus that would infect the software of the machines in the nuclear program that might then deter progress on development of that nuclear weapon. Life is about nasty choices, dealing with the nasty very real enemies we do have, and maybe that's justified.
I'm not certain it is, given everything, and I'd rather see more HUMINT methods used and more pursuit of defectors and help to opposition, but at the end of the day, it's a debate worth having, and not an open and shut case as the pearl-clutchers imagine who never cross the street to condemn Anonymous hacking the shit out of everything from corporations to newspapers, but who cluck at GCHQ or NSA doing the same back to Anonymous -- who commit real crimes for which they really go to jail.
So, sorry to disappoint, once again, I'm unimpressed and unmoved by a Snowden leak. I think there is nothing that justified this leak in civil rights or ethical terms because now the rough parameters of some serious incidents are indicated, and triangulating to figure what those were about is probably not too hard especially for the bad-willed.
Gelman has created a false proposition that we are to now lobby to end such collection in the belief that it doesn't stop terrorists anyway and violates civil rights. But his own piece explains who was indeed stopped, and does not show any violation of civil rights other than some hypothetical notion of what attaches to passively-held data.
Congress needs to move vigorously against these types of manipulations coming from the Snowdenistas and call their bluff. The NSA is once again shown doing its job properly, successfully, within a context of regulations, and no harm, no foul. No action is required due to this revelation.
And that means truly, no action. No amendments from Zoe Lofgren should be passed by the Senate about backdoors; if there are backdoors, they are needed to pursue suspects, this latest leak actually shows that care is taken in doing this, that collateral collection isn't massive, and such as it is, it has not been used in any way to harm or violate civil rights.
Congress needs to strike at the heart of the Snowdenista myth: that capacity of machines and capacity of collection equals the same thing as the ill intent to use it to harm or worse, the violation of civil rights.
It is neither, and Congress should stop accepting this manipulation put over by crypto-anarchists who are using these issues not for their own sake, but to try to take power.