At the same time though, I think Obama is looking at a comfortable point where trust is traded off for security. Problem with such points is that they can shift in either direction depending on who is in charge - that's what's scary.
I predict that a significant number of Americans will begin to treat the internet as something like a hazardous, but sometimes necessary and useful substance. Like weed killer. It might not be very dangerous but you sure don't rub it all over your body. Maybe internet will be something you keep in a certain room, and only turn it on when necessary.
That's a pity. It was nice to think "Let's try something potentially weird and intrusive but maybe valuable." I don't thank that will ever be thought of the same way.
It is a difficult task, and the government--as well as the corporations they have involved in the process--are egregiously failing.
- Edward Snowden
"...remember that just because you are not the target of a surveillance program does not make it okay. The US Person / foreigner distinction is not a reasonable substitute for individualized suspicion, and is only applied to improve support for the program. This is the precise reason that NSA provides Congress with a special immunity to its surveillance."
See U.S. v. Verdugo-Urquidez, 494 U.S. 259, 265-267:
The Fourth Amendment provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to "the people." Contrary to the suggestion of amici curiae that the Framers used this phrase "simply to avoid [an] awkward rhetorical redundancy," Brief for American Civil Liberties Union et al. as Amici Curiae 12, n. 4, "the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the people of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U. S. Const., Amdt. 1 ("Congress shall make no law. . . abridging . . . the right of the people peaceably to assemble") (emphasis added); Art. I, § 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the people of the several States") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U. S. 279, 292 (1904) (Excludable alien is not entitled to First Amendment rights, because "[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law")."""
The framers were not "global citizen" radicals circa 2013. They were very conscientiously creating a social compact to govern a country of a well-defined set of people. It is entirely natural to assume, as has been assumed, that they did not intend Constitutional rights to be universal.
To say that other people do not possess those rights implies that the Constitution is granting US citizens those rights, not simply recognizing those rights. Its a subtle but very important difference.
The origins of the revolutionary movement were demands for equal treatment as British citizens (foreigners). Thus the rhetoric of "no taxation without representation" and the initial focus on appealing to the British Monarchy for redress. Pedantic legalism aside, arguing that the founders of the American republic saw morality as nationally rather than divinely circumscribed ("under God") is shockingly wrong.
The 4th amendment did not come out of nowhere. It is not a distillation from first principles of rights common to humanity. Its a codification of what the framers believed was a right of englishmen in the English constitution.
This isn't "pedantic legalism." Its about the nature of the country we live in. The Constitution was rooted in the magna carta (rights common to subjects of the English king) and the unwritten English constitution (rights common to englishmen). It is a social compact, among a community, not a universal declaration of rights.
Beyond the founding documents of the American Republic, this is self-evident in many other early republican writings. If you've read Thomas Paine ("Rights of Man") you'd know he even picks a fight with Edmund Burke over this very issue when it comes to the French Revolution, with Paine supporting the cause of the French people on the grounds that they held "natural rights" to liberty. It was Burke (who believed in the social compact) who opposed the revolution because of its violence and social unrest.
It was Paine's position which dominated among American republicans. Among many others, Thomas Jefferson and Benjamin Franklin supported the French Revolution and linked the struggle to the struggle for "the liberty of the whole earth". Their conceptualization was here and elsewhere repeatedly and consistently one of rights belonging universally and naturally to man, regardless of his language, or country, or existing social compact.
This is not transparency. This is the regurgitation of obfuscating talking points.
* I've seen allegations of this last bit, but not evidence. The claim was that it mostly goes on the word of the requesting agency/analyst and the judge has no real way of knowing whether it's a legitimate request or not.
Apart from that, I'm German, and every time I read this "not to US citizens" excuse, all I understand is that they'll happily rape all my data without any questions asked.
My wife is not a US citizen, so the feds are apparently happy to admit they are spying on her, or could if they cared to. That's pretty bad in itself, but then consider the fact that more of my electronic messages go to or from her than any one else. They can't spy on her communications without spying on mine, too, and I am a US citizen. So are they spying on US citizens or not? Of course they are, en masse, no matter what denials they make about it.
the Regulation also applies to organizations based outside the European Union if they process personal data of EU residents.
Further in the section "Discussion and challenges":
The new regulation conflicts with other non-European laws and regulations and practices (e.g. surveillance by governments). Companies in such countries should not be acceptable for processing EU personal data anymore.
What are your thoughts on this?
So, if I use Gmail as a non US citizen, I have to assume that the US government will read/analyze my emails. That's a well recognized fact that I've also been told by people working with classified (German) government data on multiple occasions.
How they're going to enforce that, I have no idea. Now if I've understood this correctly, this means that if a foreign company is fully complaint with this new law, we would have much greater access to data that is being collected, and we also have the power to request the removal of said data. The US government might still collect all those incoming data before it has the chance to be removed, but having a law such as GDPR being enforced would be a huge step forward.
However, it is a self-certification program and it isn't really a US law, just a regulation enforced by the FTC. So while it should protect your data from third parties, e.g., being sold to advertisers, etc., it most likely does not protect your data from the US government.
But isn't it a good thing we have the public with their smartphones recording the police as they work? Isn't it great that there are multiple separate, public, open channels to provide feedback when the police go astray?
The use of "cannot" here is very problematic.
The entire concept of illegality as an impediment becomes meaningless when a class that's demonstrably above the law emerges in public.
But in common vernacular, the word "can" is used in both cases, so it's ambiguous.
"Mom, can I play on the Xbox now?" "No, you haven't finished your homework." Obviously Junior has the ability to play, but his mom won't allow him to do so.
The talking points are winning here, and language is being abused to signify the opposite of what it actually means.
EFF's position (from the CNET article): "The evidence shows that the NSA seeks a warrant only after the communication is initially acquired and analyzed by computers according to algorithms designed by humans, placed in a government database, and reviewed by an analyst."
Note that the president says "if you're a US person the NSA cannot listen to your telephone calls" instead of saying "if you're a US person, the NSA isn't recording your phone calls".
The word "cannot" in this context means "they aren't supposed to", not "it is technically impossible".
He's saying that listening to your phone calls is "against the rules" but that doesn't mean this data isn't still being captured and put into an NSA data warehouse somewhere, in case circumstances change.
Can you imagine what kind of weapon this massive library of data would be in the wrong hands?
The problem is the retroactive profiling possible by fishing through a citizen's recorded history. If they want to build a case against you for something, and go through your history of phone calls, locations, emails, IMs, etc. with a bias toward connecting you to a crime or conspiracy, they'll undoubtably find something that helps them assassinate your character enough to convince the public you are a bad person and deserve what's coming to you.
First, they use phrasing like "listen to calls" which is nonsensical in the modern world. If a computer observes all packets traveling across a fiber line, transcribes VoIP traffic into text, and then only persists counts of keywords to magnetic storage medium -- does that count as "listening"? If they do this proactively, but no human ever looks at those counts unless a warrant is pulled, does it count as listening? When we conduct the debate around outdated language, it is impossible to be specific about what is taking place.
Second, the government tends to regurgitate the law, rather than existing practice.
However, as my only other comment on the leaks indicates, I still think it's appalling that the infrastructure exists to 'passively' collect the content of U.S. citizens' online communication in the first place. From my experience working with 'big data', the step of collecting information is the difficult part. Mining the data is relatively trivial and can be 'switched on' at any point.
So my original concern still stands: there is no reason to assume that power won't be abused in the future. What happens when a terrorist threat born and bred in the U.S. successfully attacks a target? I'm willing to bet these statements about not actively monitoring U.S. citizens would quickly be forgotten and new rationalizations would be put into place instead -- e.g. the state only searches for key phrases in citizen generated content, like 'hate government'
Obama: "the NSA can't listen to your calls"
The denial I would like to hear: the NSA does not collect your e-mails, phone calls or internet traffic. The lack of a denial is looking very suspicious, and a careful reader is forced to act as if it's all being vacuumed up.
Their promises only relate to when that data may be used.
"Acquire" or "intercept" or "intake in any way" would be better. The language is very slippery here.
> I don’t think anybody says we’re no longer free because we have checkpoints at airports.
I think there are actually quite a lot of people who do expressly argue that point in nearly those exact words. The point of contention is arguing we are demonstrably less free or more inconvenienced not because of the checkpoints per se, but because of the invasive procedures forced upon the public's expectations of privacy and the protection thereof.
This--invasive violation of public expectations of privacy & protection--is becoming a bit too much of a constant theme.
> [W]e don’t have to sacrifice our freedom in order to achieve security. ... That's a false choice. ... To say there’s a tradeoff doesn’t mean somehow that we’ve abandoned freedom.
The President is an intelligent man with a solid grasp of language and its intricacies of usage. To admit there is a tradeoff is to implicitly assent to the sacrificing of freedom for said tradeoff (this, the achievement of security).
The bit about this being a false choice is interesting. The President invokes the fallacy of the false dilemma, which raises the expectation that there are additional options available--but not considered--where the goal of protecting freedoms and achieving greater security intersect ... and then does not offer any alternatives or exposition on what other options may be (or have been) considered. I'm left quite unsure of how he then considers sacrificing freedom to achieve security a false choice.
Moving on, this statement
> ... the NSA cannot listen to your telephone calls, and the NSA cannot target your emails … and have not.
directly contradicts the followup statement:
> ... if you’re a U.S. person, then NSA is not listening to your phone calls and it’s not targeting your emails unless it’s getting an individualized court order.
This strikes as more talking points rearing their head without substantive difference in an effort to shape public opinion and discourse. If it is said that the NSA cannot target emails and listen to phone calls, that is going to etch itself into the public consciousness that the technological apparatus required is not present. But the follow up clarifies in nearly identical language that the NSA is not listening/targeting "unless it's getting an individualized court order." So now we are at the opposite side--the NSA can target your emails and listen to your phone calls, despite the aforementioned clarification they cannot. The talking points are keeping things intentionally muddled where they could easily make it more plain. So, barring other intricately worded explanations, this pretty much makes it sound like the NSA can indeed listen to your phone calls and target your emails, but only--as long as the existing rules are being followed--if they secure an "individualized court order" after good old-fashioned probable-cause seeking.
Of course, this is an even more bizarre clarification for the President to make when he later turns his attention to the phone records program. The 2015 Program:
> Program number one, called the 2015 Program, what that does is it gets data from the service providers like a Verizon in bulk, and basically you have call pairs. You have my telephone number connecting with your telephone number. There are no names. There is no content in that database. All it is, is the number pairs, when those calls took place, how long they took place.
Okay, so admission that bulk call data is there, as Snowden alleged with his leaks. Once again, the talking points that this is all metadata--without explicitly using that particular word, though. And yet, it is trivial to connect a phone number to its owner. So, your call data is there in the database with all the information required to identify you specifically should intelligence agencies deem necessary.
The President further clarifies the nature of the reporting in that he says "[a]t no point is any content revealed", a perhaps unfortunate, unintended admission that the content is there. I know the President likes to be very clarifying when speaking and interviewing and somewhat sidetracks mid-sentence to clarify a specific phrase or term (note all the em-dashes littered throughout the text of the interview), but this one is particularly interesting because it reads as if he caught himself mid-un-truth when he jumps mid-sentence to say that if the FBI wants content, they then have to go to the FISC to ask for a warrant to get the content.
Any rational person should, therefore, conclude the content is indeed there to be interrogated, regardless of what the policy for such interrogation may be.
His comments on the 702 program are nigh-unintelligible for such a careful speaker as the President usually is. He tries to disqualify concerns about it by saying it "does not apply to any U.S. person", then describes it as a program that produces "essentially [but not actually] a warrant" that compels private companies who hold communications to turn over the content. Then again, the clarifier that this does not apply to U.S. persons and is only in "narrow bands" of criminal/terrorist activity by foreign agents. He further attempts to posit constitutionality and authority by saying "the process has all been approved by the courts"--but these are not publicly accountable courts whose decisions are made available to we the People.
> ... if people are making judgments just based on these slides that have been leaked, they’re not getting the complete story.
Nevermind that we are only getting a partially complete story--being hidden behind curious clarifications and dubious assertions of state secrets privileges--because of leaked slides.
The big kicker:
> It is transparent. That’s why we set up the FISA court ... My concern has always been not that we shouldn’t do intelligence gathering to prevent terrorism, but rather are we setting up a system of checks and balances?
So, on this telephone program, you’ve got a federal court with independent federal judges overseeing the entire program. And you’ve got Congress overseeing the program, not just the intelligence committee and not just the judiciary committee — but all of Congress had available to it before the last reauthorization exactly how this program works.
This is more informative than most everything else in the interview. The President clarifies that--despite much of what campaign rhetoric made people believe he thought--his concern is not whether we should be enacting these intelligence gathering programs that target everyone and attempt to hide behind policy rules, not laws. His concern is the erection of checks and balances that appear good enough, but none of which actually are explicitly in the way of public discourse and notification.
He relies on a "federal court with independent federal judges" that operate in secret and whose decisions are de facto classified, as well as statistically shown to be rubber stamp decisions.
The biggest allegation is that all of Congress had this information available to them before the last reauthorization of the programs, information that told Congress "exactly how this program works".
Either the President is lying, or Congress is putting on a sham of shock when they were already aware of all of this, or the President is throwing them under the bus for not bothering to read and understand the information before reauthorizing--thus making a move to avert public outrage toward their representatives, all of whom allegedly had this information and ignored it when reauthorizing. Or something else.
I still feel like this interview offers a depressing amount of talking points winning over actual disclosure, and yet another advance of creatively assigning words like "transparency" to programs that are clearly not.
[edit: spelling/grammar mistakes. sorry]
That's gotta win for me the "political doublespeak" award for the week. Better to have made a case that the structures were needed (which he feebly does, incongruously), than simply call one thing something else over and over again.
ministry of love, ministry of truth, ministry of peace...2+2=5. it was such a bigger part of 1984 than the surveilance bit.
In the US, political correctness is the slippery slope to Doublespeak.
> I'm often asked the question, "What's more important – civil liberties or national security?" It's a false question; it's a false choice. At the end of the day, we must do both, and they are not irreconcilable. We have to find a way to ensure that we support the entirety of the Constitution – that was the intention of the framers of the Constitution, and that's what we do on a daily basis at the National Security Agency.
Here's a quick stab at answering:
On the question of whether or not the ability exists to listen to phone calls:
The programs in question, and all other intelligence operations and agencies, do not possess the technical capabilities or requirements to collect, intercept, parse, translate, analyze, listen, or store the content of any person's voice communications at any point in time. We cannot collect, intercept, read, parse, analyze, translate, transcribe, or store any person's phone calls either in the present or the past without a properly executed warrant. When such warrant is executed, we can only engage in technical operations that allow us to wiretap or request records of private communications from the date of the warrant forward. Every communication record in the possession of intelligence agencies is tied to an executed warrant and does not pre-date the date of the warrant.
On the question of whether or not the ability exists to peruse the contents of people's email and other non-audio comunications (IM, SMS, etc.):
The programs in question, and all other intelligence operations and agencies, do not possess the technical capabilities or requirements to collect, intercept, read, parse, analyze, translate, transcribe, or store the content of any person's data communications at any point in time. We cannot collect, intercept, read, parse, analyze, translate, transcribe, or store any person's data communications either in the present or the past without a properly executed warrant. When such warrant is executed, we can only engage in technical operations that allow us to wiretap or request records of private communications from the date of the warrant forward. Every communication record in the possession of intelligence agencies is tied to an executed warrant and does not pre-date the date of the warrant.
On the question of whether the government does indeed have databases of private communications records:
We cannot collect, intercept, read, parse, analyze, translate, transcribe, or store any person's data communications either in the present or the past without a properly executed warrant. When such warrant is executed, we can only engage in technical operations that allow us to wiretap or request records of private communications from the date of the warrant forward. Every communication record in the possession of intelligence agencies is tied to an executed warrant and does not pre-date the date of the warrant. No person's communications data is present in a database unless that person is expressly mentioned as the target of a warrant.
Of course, I'd accept equivalent answers that say the opposite. Either way, the language would be far less obfuscating and make it clear exactly what the government is or is not doing.
I would also further elaborate that automatic analysis of private communications prior to the date of a warrant can not be used as justification to obtain a warrant to gather information going forward.
Any automatic analysis of content should be considered fruit of a poisonous tree and every single thing that comes from that fruit, including a approval of a warrant and fruit gathered after the warrant was issued should be considered poisoned.
The worst of all this is that the classified nature of all this makes it impossible to determine when evidence was gathered from this poisonous tree.
This is a dangerous step. Not to go too Hollywood on the subject, but I'm struck by the ways this could increase in effectiveness to the point that the next whistleblower/debacle centers on the ways in which the collection and analysis of private papers/data lead to arguing that such programs aid in the Minority Reportish prevention of impending crimes. We're already (supposedly) using this to prevent terrorism. Next thing could be robberies, murders, "illegal" demonstrations, dissent, civil disobedience, etc.--in other words, thoughtcrime.
Moreover, where juridical proceedings are concerned, how in the hell is Joe/Jane Public supposed to argue that s/he is not guilty of something that is alleged on the basis of data contained in a secret database of dubious legal, but otherwise publicly accepted, nature? How do you prove that incriminating communication records are not yours, or that they do not mean what the government alleges they mean?
As for "robberies, murders, etc.," we know that Section 215 orders have been used against hackers, and the government themselves have described the purpose of the programs to be applied to "criminals" in general:
Sorry for all the emptywheel, but she is a documentarian and thread-connector on these topics par excellence.
Do you think the answer about databases of records should address government access to databases kept by major companies?
Thanks for these enlightening posts.
If I were on the legal team interpreting the laws and their intent as it surrounds intelligence gathering, I'd see one widely open door--the Patriot act allowed for the searching of email and telephone communication records, and National Security Letters allow law enforcement to use these letters to investigate US citizens, even when they are not suspected of committing a crime, and absolve them of the requirement to obtain a warrant before searching "records".
Given that much of the debate is centering on conceptions of records, collecting, intercepting, databases, metadata, etc., I would guess there's a significant probability that the NSA et al. interpret the Patriot Act in such a way that the widespread collection of records is well within the dictates of the law and does not run afoul of the any legal requirements.
Where databases owned by private companies are concerned, I expect those fall under established warrant procedures that require law enforcement to stipulate the need to search and seize such records from the companies when a proper warrant is issued declaring the specific items to be seized and from where. So, I would guess that a legal challenge against government access to databases kept by major companies would be a rather Sisyphean battle, given warrant case law and precedents. Of course, with warrants, the suspected party is, I believe, able to be notified/aware of the warranted search & seizure. With NSLs, however, the Patriot Act lifted that, creating instead a much more attractive (to law enforcement & intelligence agencies, at least) vehicle that carries an automatic gag order.
The real issue is government access to those records en masse and without standing warrants specifically detailing the targets of collection. And here is where we start wading into creative interpretation of (possibly intentional) ambiguously worded legislation granting expansive powers to search records without a warrant, records which can now include telephone and email correspondence, as well as other records which have been commonplace in the last several decades of warrant issues.
It's not like anyone is gonna find out or held them accountable at the listening level.
Well, not really, but that's what would be necessary for such a claim to hold any water.
I find it very disturbing and dangerous to the healthy operation of a free society when any individual or collective entity is required to lie about receiving legal orders to turn over information to the government.
I haven't thought through all the ramifications of that sentiment, of course, but it is very unsettling.
In human-speak, "can't" means, "do they have a system capable of letting your average NSA analyst do this easily without oversight?" I suspect we'll never get the answer to this question unless it is leaked.
This is exactly the kind of thought I hoped the internet would break, and I have worked quite hard to help it happen, the day of the feuds are over, no more lords to came and lie to us telling that people who lives on the other side of that river want bad things to happen us, no more divide and conquer, the middle ages is over, is it?
If you're a foreign living, studying or for holidays in the USA there is no problem that the NSA spies you.
Obama (2013): We don't spy on citizens
The President really has no credibility here - it's like asking a CEO if his company is engaged in illicit behavior - even if it is, it's his job to say it isn't (or that he isn't aware of it).
The constitution of one country is being used to govern an infrastructure that powers many more.
If there's a fix, it should be some means of taking out of governmental hands altogether.
Though I was thinking more along the lines of making the internet less reliant on American-housed or -owned infrastructure.
Let's say you have an American, living abroad. He signs up for a Skype account. Skype does not verify nationality or identity. He starts using Skype to call phones in some country the NSA finds suspicious (say, Afghanistan). A dragnet which would intercept these communications automatically would be illegal, as one of the parties was a US Citizen... and they would need a warrant.
The whole thing is ridiculous. The whole question of "do I need a warrant or not" requires you to prove that you do not. But to whom? You are in the pre-warrant phase... Crazy.
Also, because I don't believe that these policies are worth anything; what really matters are capabilities, and the NSA clearly has whatever access it needs to listen to anyone it wants.