Why we fear broad surveillance

WHEN the brouhaha over the Department of Justice reading the e-mails of James Rosen, a Fox News reporter, broke last month, I wrote that it seemed quaint to be outraged about the department getting a warrant from a judge for a specific target (and eventually disclosing the warrant) when other agencies can obtain secret authority for much wider surveillance. What I wanted to write was that the National Security Agency (NSA) was doing the same sort of thing all the time. But I couldn't do that because I didn't know whether it was true, such surveillance being, you know, secret. I assumed that the NSA had probably been routinely accessing vast amounts of electronic communications from millions of Americans ever since we first learned this was happening under the Bush Administration. With the agency building a $2 billion facility in Utah to process multi-yottabyte quantities of data from its Global Information Grid, complete with the world's fastest decryption supercomputer, one assumes it's doing so for a reason. But we didn't officially know anything about exactly what information the NSA was harvesting.

So now we know a tiny little bit. As my colleague outlines and the Guardian reports, on April 25th the NSA got a warrant from the Foreign Intelligence Surveillance Court ordering Verizon to pass on records of all calls made on its network until July 19th. Verizon must give the NSA the numbers of the caller and the person called, the caller's location, and the time and duration of the call. There doesn't seem to be any reason to believe that Verizon is the only network the NSA is monitoring, or that April-July is the only period they're monitoring. (Dianne Feinstein, the chairman of the Senate Intelligence Committee, hints that this has been going on for seven years.) It seems entirely plausible that the NSA is simply recording everyone's calling data and locations, all the time, and that the court is approving warrants for them to do so.

This casts a bit of a new light on the controversy years back over the Bush Administration's warrantless wiretapping programmes. If the FISA court is willing to approve surveillance this broad, it's hard to see why the administration ever wanted to circumvent it. On the other hand, if the court is willing to approve surveillance this broad, and the NSA doesn't have to disclose the fact of that surveillance, it's hard to see what the point of subjecting such surveillance to a court is. Hopefully the court would be much more leery of approving a warrant allowing the NSA to actually pore through the contents of everyone's phone calls, and perhaps enforcing that barrier is the court's raison d'etre.

But one thing I haven't seen enough of in the coverage of the latest surveillance scandal is a reminder of what it is we're afraid of when the government collects such immense amounts of data in sweeps of our personal information. It's not the totalitarian fear that an agency that knows exactly where we are and who we're talking to at all times would find it easier to round us up; we're not a totalitarian state, and in any case, in modern America, if the police want to arrest you, they'll be able to find you. The legitimate fear boils down to two things.

The first is the possibility of illegitimate pressure based on information we didn't intend to be made public. Everyone has secrets; everyone has things they'd prefer not be publicly known. If a detective who suspects you of committing a crime knows that when your wife called you at 11.30pm on Wednesday you were at the apartment of your attractive co-worker, that detective is likely to threaten to release that information to convince you to sign a confession. This problem is exacerbated by the fact that when we say "the government", we are actually referring to huge numbers of different agencies and individuals, each of which have their own interests and will use whatever information resources they get their hands on to pursue those interests.

The second is the fear that a pattern of circumstantial activity will lead us to be falsely incriminated, or to suffer administrative penalties that don't even require any actual indictment. In the era of the no-fly list, it's not clear what set of activities are enough to get you to pop up on somebody's computer screen at DHS and turn your life into a Kafkaesque hassle-dome. Did you visit Qatar, then Pakistan, then Qatar again? Did you spray-paint artistic graffiti on a sidewalk that turned out to be too close to Dick Cheney's daughter's house? We don't know; our security agencies will never tell us. Giving the NSA a vast database of phone calls, and inviting them to search for correlations that might be predictive of terrorist activity, is likely to generate a massive number of false positives.

It's not just the government that we need to watch here; the phone companies themselves routinely store call and location data from your phone, aggregate it, and sell it to third parties. Hopefully the FCC will ban that practice except with user consent, when it votes on it later this month. It would also be a good thing if the NSA were blocked from routinely mining patterns from every phone call made in America in the hopes of finding something that matches up with terrorism. Another approach would be to see whether we can erect clearly enforced firewalls that prohibit the NSA from sharing its knowledge that you were in bed with your mistress with prosecutors. Then again, the fact that different intelligence agencies weren't allowed to pool their knowledge was precisely what outraged Americans in the aftermath of the September 11th attacks.

And as for reining in the data-gathering activities, I'm a bit sceptical that blocking the NSA's routine court-monitored requests will go very far towards curtailing their other mind-boggling data-harvesting efforts. A while back I had a conversation about this with a longtime digital-freedom hacktivist who had initially been a senior advisor in the WikiLeaks project. I asked him what he thought were the most important political projects to protect online privacy and organisational openness. He said that ship had sailed; it was too late to carve out a zone of electronic freedom. The architecture had already been defined; the telecoms corporations and the government can learn whatever they want about you, and there was no way to undo what had been built. So, I asked, how did he plan on protecting himself against America's crusade against WikiLeaks? He didn't, he said. He had a family to consider. He'd dropped out.

Original Article
Source: economist.com
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