So, it turns out that, just as under President Bush, the National Security Agency under President Obama is sifting through the data from millions of phone calls. While this may or may not come as a surprise to you, the practice had not been confirmed until it was exposed by the Guardian last night. Now the fallout begins. Here’s what everyone is talking about.
Kevin Drum, Mother Jones:
Obviously I’m missing something. After Democrats caved on the surveillance bill in 2007, I simply assumed that this kind of massive data mining of telephone metadata was going to continue forever and everyone knew it. But Glenn suggests that, in fact, this is something surprising. So I guess I assumed wrong.
“Information of the sort described in the Guardian article has been a critical tool in protecting the nation from terrorist threats to the United States, as it allows counterterrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, particularly people located inside the United States.”
Wait, what exactly is going on?:
Benjamin Wittes, Lawfare Blog:
So I’m trying to imagine what conceivable of facts would render all telephony metadata generated in the United States “relevant” to an investigation …. I think the only possible answer to this question is that a dataset of this size could be “relevant” because there are ways of analyzing big datasets algorithmically to yield all kinds of interesting things—but only if the dataset is known to include all of the possibly-relevant material. The data may not be relevant, but the dataset is relevant because it is complete—and therefore is sure to include any communications by whomever the bombers turn out to be.
Orwinn Kerr, Volokh Conspiracy:
If the order is what it appears to be, then the order points to a problem in Section 1861 that has not been appreciated. Section 1861 says that the “things” that are collected must be relevant to a national security investigation or threat assessment, but it says nothing about the scope of the things obtained. When dealing with a physical object, we naturally treat relevance on an object-by-object basis. Sets of records are different. If Verizon has a database containing records of billions of phone calls made by millions of customers, is that database a single thing, millions of things, or billions of things? Is relevance measured by each record, each customer, or the relevance of the entire database as a whole? If the entire massive database has a single record that is relevant, does that make the entire database relevant, too? The statute doesn’t directly answer that, it seems to me. But certainly it’s surprising — and troubling — if the Section 1861 relevance standard is being interpreted at the database-by-database level.
It’s time we sit down as a country and have a talk:
Marc Ambinder, the Week:
In a way, it makes sense for the NSA to collect all telephone records because it can’t know in advance what sections or slices it might need in the future. It does not follow that simply because the NSA collects data that it is legal for the NSA to use the data for foreign intelligence or counter-terrorism analysis. Unfortunately, we don’t know precisely what the NSA can do because its rules are highly classified. This disclosure will hopefully force the government to clarify the rules it uses to actually analyze the data it collects.
Richard Forno, Stanford’s Center for Internet and Society:
Given that many of these ‘tools’ were reactionary and implemented quickly by fearful lawmakers eager to be seen as ‘strong’ on homeland security in the years following 9/11/01 (and/or influenced by the military-industrial-homeland-congressional complex) it’s all the more reason to begin a comprehensive public, objective, and informedreassessment of their continued use. We must accept the reality that no matter how much data is collected, nations never will be able to prevent any and all future Bad Things from happening – and while that’s a noble goal and public reassurance, at what point do we allow policymakers to take enough steps toward that goal that they end up conceptually destroying the very nation they’re purportedly trying to save?
Sound the alarm:
Steven Aftergood, Federation of American Scientists :
At first glance, this appears to be a massive overreach by the government, as well as a massive failure of congressional oversight and judicial review to curb the Administration’s excess.
Michelle Richardson, ACLU legislative counsel:
“Now that this unconstitutional surveillance effort has been revealed, the government should end it and disclose its full scope, and Congress should initiate a full investigation. This disclosure also highlights the growing gap between the public’s and the government’s understandings of the many sweeping surveillance authorities enacted by Congress. Since 9/11, the government has increasingly classified and concealed not just facts, but the law itself. Such extreme secrecy is inconsistent with our democratic values of open government and accountability.”
Gregory Ferenstein, TechCrunch:
Late last year, I wrote about a few actual harms that citizens should be worried about from these types of big-data spying programs. Blackmailing citizens critical of the government seemed like a distant hypothetical, until we learned that the IRS was auditing Tea Party groups and journalists were being wiretapped. Nefarious actors inside the government like to abuse national security programs for political ends, and that should make us all (even more) suspect of government spying.
Conor Friedersdorf, Atlantic:
We don’t know if the federal government has a similar order for AT&T. Or any other carrier. Or if they’re spying on the emails of Americans as well. Why? That isn’t the sort of thing President Obama thinks he needs to tell us, and Congress persists in giving him that latitude. Americans, who haven’t been objecting to any of this in large numbers, aren’t even demanding to know whether or not their government is assembling the most sophisticated surveillance state in human history.
Has fear of terrorism done this to us?
Whatever the cause, the current behavior of the American electorate does not befit a free people.
Cindy Cohn and Mark Rumold, Electronic Freedom Foundation:
Today, the Guardian newspaper confirmed what EFF (and many others) have long claimed: the NSA is conducting widespread, untargeted, domestic surveillance on millions of Americans. This revelation should end, once and for all, the government’s long-discredited secrecy claims about its dragnet domestic surveillance programs. It should spur Congress and the American people to make the President finally tell the truth about the government’s spying on innocent Americans.
Marcy Wheeler, emptywheel:
That is what all the secrecy has been about. Undercutting separation of powers to ensure that the constitutionality of this program can never be challenged by American citizens.
It’s no big deal, says the Administration. But it’s sufficiently big of a deal that they have to short-circuit the most basic principle of our Constitution.