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NSA loophole allows warrantless search for US citizens' emails and phone calls (theguardian.com)
300 points by LoganCale on Aug 9, 2013 | hide | past | web | favorite | 62 comments

A baseball player lied to Congress and got charged with perjury. James Clapper lied to Congress, all the politicians listed in this article lied to the U.S. public, and what will they get? Industry jobs and high positions when they leave office. Capital rewards behavior benefiting capital.

So much for being "equal under the law". If you cannot trust the law to protect you, you must assume that it is being used against you.

All animals are equal, but some animals are more equal than others.

Sounds like PHP or JavaScript!

As Alex Coles @myabc tweeted:

truthy || falsy values – like JS, @BrendanEich also has issues with equality – http://projects.latimes.com/prop8/donation/8930/

Dubious syllogism. Baseball players certainly reward capital, in spades. by all accounts, overweening NSA surveillance is hurting capital as Europeans in particular seek other vendors for cloud services.

Not to mention the fact that baseball is a sport of entertainment, and is you strike out people won't be blaming the deaths of others on you.

There's no baseball lobby, at least not one that would care about an individual player, and I'm sure a couple of Europeans dropping Gmail is not going to make any lobbyists upset at these politicians for trying to defend their special interests (through lying or otherwise)

alt 1: capitol rewards capital

alt 2: capital rewards capitol

Please get published so an audience beyond HN can read.

Chris Hayes basically wrote this book already - Twilight of the Elites: America After Meritocracy

Glen Greenwald - With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful


Discusses the era from Watergate to early Obama shielding Bush officials and telecoms.

Haha you mean me? Maybe someday.. (you can find my blog among my submissions if you were really expressing interest in more writing from me)

Link me?

Investigating a baseball player carries little or no risk for a politician. It's a safe, easy political win.

Worse yet: even the richest athlete in the world is at a grave disadvantage when confronted by the enormous power and resources of the federal government. These type of vanity investigations are nothing more than the institutional bullying of a private individual for political gain. It's frustrating and furthers the perception that congress is filled with opportunistic cowards.

On the note of lying, Obama just explicitly denied exactly this in his press conference an hour or so ago.

He just gave the least untruthful answer he could give ;-)

Capitol rewards behaviour benefiting capital.


It's disheartening that despite the continual stream of information pouring in about the NSA the average citizen remains comparatively indifferent and the media and most representatives seem to be supportive of the NSA's activities.

That being said, I wouldn't go as far as to say the average American doesn't care, just that their reaction in light of these leaks is underwhelming. I don't believe that the slide towards total surveillance (or anything for that matter) is inevitable, but I would much appreciate confronting mass surveillance now as opposed to 10-20 years down the road.


1. American citizens do not believe the people running the US government are or could become corrupt;

2. They haven't considered, or are not bothered by the fact that their habits will be shaped by the fact that someone is watching;

3. They believe the infrastructure will be used against anything that represent existential threats (terrorism), grave injustice (child pornography) or grave moral threat (a fringe political group);

4. Despite the fact that the definition of terrorism is quite fluid and could be used to target any stand against the government (as opposed to against the country itself), they don't want another 9/11 and see the apparatus as necessary to prevent it;

5. They believe the USG chooses sides in international conflicts based on moral considerations, and not realpolitik which often hurts them later (see: Al Qaeda)—or are comfortable with amoral positions as long as they benefit the country in the bottom line;

6. They do not believe those in power can change their minds in the future;

7. They don't believe in authorities framing innocent persons;

8. My favorite, one-track point of discussion here: Americans are slightly xenophobic. So they're fairly happy to know the US has a big machine to track and all those pesky foreigners and keep their countries nice and obedient.

And it's not like the beliefs are unfounded. The US government has generally been good for its citizens. The only truly harmful actions of the USG have been targeted at other countries. You don't feel threatened until a drone kills your teenage son. But while your government does that thousands of miles away from you, it's easy to be forgiving of all that.

Americans are not used to systemic corruption and tyranny, so they don't have the framework to consider their state becoming authoritarian or totalitarian.

Regarding #1, if you've looked at Americans' confidence in Congress lately [1] it seems exceedingly unlikely that Americans perceive their elected officials as incorruptible. In fact, that has mostly been the case post-Watergate.

> "Americans are not used to systemic corruption and tyranny, so they don't have the framework to consider their state becoming authoritarian or totalitarian."

I agree, and I'll add that since the US is still a relatively young country whose present form of government has been in existence since shortly after its inception, Americans have trouble mentally disassociating their opinion of America--its culture, its people, its common beliefs--with their opinion of American government. In countries where citizens have lived to see multiple governments come and go, this is much easier to do. Americans, however, seem to have a hard time loving their country but hating their government, even when their government actively works to undermine and destroy some of the best qualities of their country.

[1] http://www.gallup.com/poll/163052/americans-confidence-congr...

In a 2013 poll, people who could name their own Congressman approved of them 2 to 1: http://www.gallup.com/poll/162362/americans-down-congress-ow.... This is basically the most telling poll out of any. The people who can name their Congressman are probably the people who vote regularly, and out of those people, the vast majority support maintaining the status quo.

It is never their politician that is the problem. Its all those other politicians you see. Nevermind that a good portion of those "other politicians" are from the same party and more or less vote the same way...

My hypothesis is that people are (mostly) not subjected to the election time advertising campaigns of other (nearly identical) politicians. Their politician is from a small town just like theirs and has a cute dog and a nice family! That other senator from the next state over? Who knows, he's almost certainly a scumbag.

Advertising works; film at eleven...

Interesting, thanks for the link. There are very likely some hometown bias effects as well, but my speculation is that Congress as a whole is judged by different standards than a person's congressional representative. The former, I would imagine, would tend to be judged by its actions (and how they are portrayed by others), while an individual congressman can be judged based on how well a person identifies with him or her (something not possible to do with a large heterogeneous group of people).

Whatever the cause, it's a fascinating dissonance.

If I'm a Republican, and I have a Republican congressman, I like him because he represents my views, for the most part. I dislike Congress as a whole because half of it disagrees with my views, and the half that does agree with them is hamstrung by the half that does not.

Despite the rhetoric of "both parties are the same" people really only care about a few issues, which the parties differ on: taxes, welfare, religion, education, social issues, etc. I just got hassled on the street today by a college-aged male to support planned parenthood. Who do you think he votes for? Why? What does he think of Congress?

Nothing has happened to the "average" American citizen yet as a result of this. No one's gone to jail, no one's been arrested, no one's been "silenced".

Combine that with the general US notion (a notion existent since the Munroe Doctrone in the early 19th century) of isolationism, and you've got an explanation for why we're generally okay with this.

> That being said, I wouldn't go as far as to say the average American doesn't care, just that their reaction in light of these leaks is underwhelming.

Classic https://en.wikipedia.org/wiki/Boiling_frog situation. What is now somehow acceptable, would have been outrageous a dozen years ago. In a few months' time people will have accepted that the NSA is spying on US citizens without a warrant.

This is why it is inevitable that the US will become a totalitarian surveillance state - if the political establishment chooses to go down that road.

Except it was worse 30-50 years ago. Do you really think what the NSA is doing now compares, vis-a-vis outrage (not scale), to what the FBI was doing in the 1960's? To analogize to the OWS protests, you think anything that happened with that is as bad as the Kent State shootings in 1970?

Going back further, watch this movie on Prohibition: http://www.pbs.org/kenburns/prohibition.

You think 4th amendment rights are being violated now, back then Prohibition Bureau agents were just sweeping houses looking for illegal alcohol. Seriously, watch the video. It should be eye-opening for anybody who thinks that the trajectory of this country has been towards less freedom and more corruption.

I don't see a boiling frog situation, I see the opposite: people getting more used to stronger protections against government and reacting more strongly to lesser outrages. That doesn't mean the outrages are less valid, but rather it means that the defeatism inherent in the "boiling frog" analogy is unwarranted.

The counterpoint is...can you imagine Hoover as the next DIRNSA?

Hmm.. let's not criticize the situation now because it was much worse in the past. But I'm not shocked you used that argument given your apologist comments on other posts related to the National Sorority Agency on HN.

You might have a point if I was arguing that the NSA spying isn't bad because the FBI used to be worse. But I'm specifically responding to the "boiling frog" reference in lazyjones's post. The whole premise of the "boiling frog" is that things get worse for the frog over time, but slowly enough that it doesn't notice until it's cooked. The boiling frog analogy, and various slippery-slope lines of reasoning, seem quite inconsistent to me with the general trajectory of civil liberties over the last 100 years.

It's a very good argument, because the suggestion that we've abandoned some golden age of individual liberty in the US is not rooted in fact. The individual has far more standing in conflict with the state than used to be the case.

Classic https://en.wikipedia.org/wiki/Boiling_frog situation. What is now somehow acceptable, would have been outrageous a dozen years ago.

It might have stirred some opposition in August of 2001, but by September of 2001 people were pretty united in the desire to punish the perpetrators of 9/11 by any available means.

> It's disheartening that despite the continual stream of information pouring in about the NSA the average citizen remains comparatively indifferent

The reality is that tens of millions of Americans are struggling to make ends meet, working multiple jobs, juggling credit cards, mortgage payments, car payments and trying to get by with little to no healthcare.

These people are too swamped by the day to day to have the time or energy to look around at the bigger picture. Life is too hard already.

Schneier linked to a study that might explain why some people don't seem concerned about their information being collected for secret government programs.


Of course, there's also the "I've done nothing wrong, I have nothing to hide,"-type folks, and people who are generally authoritarian too.

Classified texts may be seen as more accurate and reliable because they are assumed to be free of any attempt to manipulate the public.

I didn't read the paywalled paper, they may already cover this hypothesis.

It's difficult to illustrate the harm of NSA spying. In principle mass surveillance is wrong. But in practice it the effect on the average citizen is minimal to non-existent. The vast majority of surveilled people continue on normally, they work, play and live the same - i.e., the consequences of government spying on the individual level are not immediate and apparent.

Unfortunately I don't think we'll see mass popular opposition until a clear misuse of these spy powers occurs. Something similar to Watergate where a high-ranking government official uses their surveillance powers to further a personal political agenda. Unfortunately by the time it gets that bad it may be too late for reform. The next generation of mass surveillance tools will undoubtably be far more intrusive and effective. Which is why we need to agitate now against these surveillance programs.

> I wouldn't go as far as to say the average American doesn't care,

I would. Or, rather, considering only Americans who are upset about this sort of thing, they don't care enough to spend time on this, and expose themselves to risk.

For a given action (say, protesting), you have to measure the cost and the benefit.

We are incredibly rich compared to the people who protested in large numbers in the past, in the sense that we have more to lose, so the cost is higher than it has been in the past.

I believe that there's also an element of "what could I do?", in that there's no path to making a difference. Maybe I speak only for myself, but it's not at all clear what action I could take that would have a significant effect on political things I care about: the times when something went the way I would prefer, I clearly had nothing to do with it, and the times when I acted, nothing came of it (except mild or moderate cost to me personally), so I need to see or create a realistic plan before I work at it again. So, considering the likelihood of making a difference combined with the worth of the difference, the benefit side is similarly lacking.

A kind of exhaustion results from the constant drumbeat of scandals and horror stories and outrage porn, and I believe modern media consumers and internet readers are numb. There are so many terrible things happening at every level that it's just not clear where to begin, and adding the NSA revelations to it doesn't help simplify. Were so many terrible things happening in the 1950s? I think they were, but since the average citizen didn't hear about the vast majority of them, when they did hear, there was a clear call to action about it, and some answered that call. At this point, any action I take has to include a justification about why I didn't act yesterday -- what makes this time different; why is this problem worth spending money and time and potentially risking my freedom or health?

I think a lot of people think the fears are overblown, that government is basically perpetually inept but well-intentioned, and even if they do capture everyone's data, they can't possibly make sense out of all of it or connect all the dots on each of us meaningfully & use that to impinge on our liberties.

I, of course, think that's dangerous and short-sighted thinking and there are higher principles at stake here (and for the future), but I get a strong inkling a lot of folks shrug and feel this way. My wife, for instance.

A buddy of mine said that he thinks it might because of things like FB, there are now so many people that just have no expectation of privacy. He might be onto something.

It's astounding how many people just don't know the facts of this.

I'm a bit confused on what the actual "backdoor" here is:

"While the FAA 702 minimization procedures approved on 3 October 2011 now allow for use of certain United States person names and identifiers as query terms when reviewing collected FAA 702 data," the glossary states, "analysts may NOT/NOT [not repeat not] implement any USP [US persons] queries until an effective oversight process has been developed by NSA and agreed to by DOJ/ODNI [Office of the Director of National Intelligence]."

The term "identifiers" is NSA jargon for information relating to an individual, such as telephone number, email address, IP address and username as well as their name.

The document – which is undated, though metadata suggests this version was last updated in June 2012 – does not say whether the oversight process it mentions has been established or whether any searches against US person names have taken place.

This seems to suggest that procedures allow for the name of a United States person when querying data collected under FAA 702 (for example, they could search for intercepted communications where the parties referred to the President by name); however, no analyst is allowed to do so until an oversight procedure is developed and approved.

Is that the entire backdoor? That the name of a US person can be used as a search term?

It looks like you can search the communications of US persons who interacted with non-US persons by using the US person's name.

It sounds like the minimization procedures allow you to search for any US person's name, not necessarily to find the intercepted communications between a foreign person and that specific US person.

For example, to find communications where parties A and B were discussing US Person C.

With my tin-foil hat on, I'm wondering if this whole Snowden thing isn't just to make people numb to the idea that they are being watched 24/7. And it seems that people don't care about privacy we can only expect things to get worse.

I've considered this too, but I haven't seen any signs of deception in Snowden's words or actions. As a counter-example, consider Obama's 2008 campaign. Many people were deceived by his speeches on civil liberties, myself included. But even then there were legitimate misgivings with his Senate voting record. I have had no such misgivings about Snowden. His words and actions ring true.

I don't think he was implying that Snowden is not as he presents himself to be, just that the outcome of all this might be apathy.

That's ridiculous. You think they would self-inflict this huge PR nightmare upon themselves?

They were doing perfectly fine before the leaks, getting cooperation from major tech companies and other countries and their reach was constantly expanding.

It's silly to think they'd give all that up by setting in motion something which could potentially piss of its own citizens and its allies, just for the off chance that people might become numb to it. Then what happens? They continue their operations just the same way they did before?

They were doing perfectly fine before the leaks, getting cooperation from major tech companies and other countries and their reach was constantly expanding.

Has anything changed? Has the people involved even noticed any difference, aside from some black ink in newspapers?

The first thing that comes to mind is that they're apparently firing 90% of their sys admins. Their internal workings are definitely being affected.

I don't think this is the case.

But on a smaller scale: The Bush administration would put out a piece of legislation that was a hyperbole, watch the public/democrats react, then ram through a "less worse" bill in the guise of compromise.

I wonder what are the differences between the "Sweet* and Sour* Partitions" of PINWALE?

> "702 is focused outside the United States at non-citizens," said Adam Schiff, a member of the House intelligence committee. "The evidence of the effectiveness of 702 is much more substantial than 215 [the bulk phone records collection]. So I think there are fewer fourth amendment concerns and more evidence of the saliency of the program."

Here is as clear an admission as we will ever get that despite all the lip service politicians are paying to "tradeoffs" between security and liberty, all they really care about is providing the appearance of security at any cost. Apparently, when a law is deemed to be "effective" it justifies "fewer fourth amendment concerns". One wonders if rounding up (aka "rendering) political activists or people like Glen Greenwald would justify fewer First Amendment concerns.

When did the Fourth Amendment become a nice little luxury that Americans jettisoned as soon as rumors of terrorists doing bad things started circulating?

They traded the Fourth Amendment in for two Second Amendments.

The FBI director publicly assured Rep. Nadler (D-NY) in June that FedGov needed a "particularized" order from the Foreign Intelligence Surveillance Court to target U.S. citizens: https://plus.google.com/112961607570158342254/posts/jQ71osLy...

Someone's lying. Right?

There is likely a lawyerly distinction here between "target" and "use person's name as a query".

It's a 702 vs 215 distinction, right?

A comment to the artilce by a "Strummered"

"When the people fear the government, there is tyranny. When the government fears the people, there is liberty". - Thomas Jefferson

All we have now are corporate lawyers and stooges.

Not only did Jefferson not say that, it wasn't even attributed to him until 1994.


"When the government fears the people, there is liberty".

And the way in which the government can fear the people is through a revolt of the secret-keepers. Probably why all the sysadmins are getting fired, as a possible admission that the NSA doesn't know who of their own they can trust.

I don't understand why we even use terminology like "loophole" or "allows". I don't think the NSA really gives a shit about the legality of any of the this.

I am glad I live in Oregon where my representative (Ron Wyden) is actually offering some resistance.

This is the end.

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