Tuesday, July 23, 2013

Congress Speaks on Surveillance Program

Bipartisan Backlash Grows Against Domestic Surveillance

Response to an article by James Risen
New York Times, July 18, 2013

Is there really a Congressional backlash against domestic surveillance? And, if so, what are its chances of success in reforming this surreptitious practice? Here are some responses to major parts of this New York Times report. The Italicized text is from the NYT article.

The Obama administration faced a growing Congressional backlash against the National Security Agency’s domestic surveillance operations . . . as lawmakers from both parties called for the vast collection of private data on millions of Americans to be scaled back.”

Is this backlash real? Or is it a just public display of pseudo-concern to assuage the concerns of their constituents?

Senator Al Franken, Democratic of Minnesota, said in an interview that he planned to introduce legislation mandating public disclosure of programs.”

How much public disclosure? We already have some disclosure, thanks to whistleblowers, who had to break the law to make some things public. Besides, it is not just disclosure we need, but rigid controls, strict oversight, ongoing auditing of procedures and practices; and objective, unbiased reports from the Inspector General on at least a quarterly basis, with monthly status and progress reports.

. . . Republicans and Democrats told administration officials that they believed the government had exceeded the surveillance authorities granted by Congress, and warned that they were unlikely to be reauthorized in the future.” (emphasis added)

Believed? Isn't there enough evidence to prove they exceeded their authority? Warned? A warning isn't action or even a guarantee that there will be action taken. Unlikely? Another weasel word. That means only that they don't want to commit to any specific action. And, why wait for reauthorization in 2015? If what they are doing is bad enough to deny reauthorization, two years form now, why isn't that sufficient to revoke their privileges now?

Representative Jim Sensenbrenner, Republican of Wisconsin, said that no one in Congress believed that the counterterrorism laws enacted since the Sept. 11, 2001 attacks were meant to allow for the collection of phone records of virtually everyone in America.”

If that were true, then why didn't the specifically exclude it in the laws? Before the Computer Age, phone tapping was a primary way of gathering intelligence. Why wouldn't it occur to them that collecting everybody's phone records could become a valuable source of information as well? And, why didn't they write their legislation to specifically exclude collecting phone call information? There are so many loopholes and vague terms in that legislation that different people can interpret it in different ways.

“”The government is stockpiling sensitive personal data on a grand scale,' said Representative Ted Deutch, Democrat of Florida.”

And they are doing it in secret. Much of the information they collect is of no meaningful value at the present time. But they hold onto it for five years, just in case there may be some future use for it.

Intelligence officers, contractors and personnel only need a rubber-stamp warrant from the FISA court to then learn virtually everything there is to know about an American citizen.”

Members of the FISA Court deny the rubber-stamp procedure, but what is an intelligent person to conclude, when only 11 requests were denied in the 34-year period ending in 2012, while 33,938 requests were approved?

. . . several lawmakers said that the data collection was unsustainable, and that Congress would move to either revoke the legislative authorization for the bulk collection now or at least refuse to renew it when it expires in 2015.“

At least someone is thinking somewhat along the right lines. However, I still have to ask this question: If they truly believe that the government is doing something untenable and want to do something about it, why would they even consider waiting another two years and let the government continue “business as usual” during that time? Are they perhaps thinking that the issue won't seem as important then, so they won't have to do anything?

Mr. Sensenbrenner interrupted James Cole, a deputy attorney general, to say, 'Unless you realize you’ve got a problem, that is not going to be renewed.'”

Realizing you've got a problem is not sufficient. You have to rectify the problem, or it will persist. We need corrective action, and strict oversight now and rigid processes to prevent abuses in the future.

Much of the controversy involves the agency’s bulk collection of telephone data, which includes which numbers have called other numbers and time and length of calls, but not the content.”

It is my opinion that the primary emphasis is on the telephone metadata because that is the easiest to defend, as long as they record only what they say they do, and never gather or search content. However, I think the other collections are far more invasive and, therefore, more important. This includes items with specific content that is open to damaging misinterpretation and violations of Constitutional rights of unreasonable search and seizure, as well as immunity from self-incrimination.

Government requests include accessing and searching business or personal information – and not just telephone metadata. They also gather specific information from e-mails and text messages, and any attachments. These can include privileged attorney-client communication, sensitive communication between you and your doctor, and even communication between you and your accountant, tax preparer, financial advisor, bankers, etc. They can also collect information from sites visited, uploads and downloads made, on-line shopping and purchases –- you name it: if it is digital they can access it, including IDs and passwords for your credit cards and bank accounts. They can get such a broad array of information that they can get to know you and your pattern of living better than your closest friends. And they are able to do all this behind a shroud of secrecy, without your even suspecting that they are doing it to you. That is why we need strict control over such surveillance, access, and analysis It is too dangerous otherwise.

In a letter to top administration officials, the group will ask that the government start opening up the surveillance process by allowing companies to publicly disclose the number of secret requests for data they receive from the N.S.A., the number of individuals the requests cover, and whether the requests involve the content of communications or other data, according to a draft of the letter and interviews with officials from the companies and organizations involved.”

What would this accomplish? Just reporting gross numbers is virtually meaningless and does nothing whatsoever to control the intrusive capture and usage of information.

The group, which includes Apple, Google, Facebook and Twitter, and organizations including the Center for Democracy and Technology, the Electronic Frontier Foundation and the American Civil Liberties Union, urge in their letter that the government publish the same information, and that Congress should enact new legislation mandating greater openness in the surveillance process.” (emphasis added)

What constitutes “greater openness?” Publishing raw numbers would probably be greater openness, but it does nothing to protect hundreds of millions of people from having their private information collected in the first place, or having it exposed to illegitimate or undesirable usage.

The letter does not demand an end to the domestic surveillance.”

It might not have to if it had a high level of justification, some rigid controls and close oversight.

But it is still significant because it allies the corporations that are directly involved with the government’s surveillance collection with some of the most vocal critics of the administration’s efforts to keep the N.S.A. domestic spying program in the shadows.“

To me, this appears to be more of a public relations ploy on the part of Microsoft, Apple, Google, Facebook and Twitter. They can make this a win-win case for them if they can create the impression that they are on their customers' side, not big government, even if big government prevails in the end..

Representative Jerrold Nadler, a New York Democrat and member of the Judiciary Committee, said in an interview. 'I think the situation is extremely fluid, but I know a lot of people are interested in doing something.'”

Being “interested in doing something” and actually doing something worthwhile can often be two totally different things.

Senator Al Franken, Democrat of Minnesota, said in an interview that he planned to introduce legislation mandating public disclosure along the same lines as the recommendations in the coalition’s letter, while Representative Rick Larsen, a Washington Democrat, said in an interview that he was planning to introduce similar legislation in the House on Thursday.”

If “public disclosure” means just publishing a bunch of total numbers, as mentioned above, this is meaningless.

On Tuesday, Mr. Sensenbrenner and Representative Zoe Lofgren, the California Democrat who is the ranking minority member on the judiciary panel, sent a letter to Mr. Holder and James R. Clapper Jr., the director of national intelligence, also asking that the companies be allowed to disclose more information publicly about government demands for data.” (emphasis added)

“Be allowed?” How about “be required?” “More information?” How much is more?”

Mr. Sensenbrenner released a letter Wednesday from the Justice Department, defending the scope and the legality of the government’s surveillance operations. The department said that it was necessary for the N.S.A. to collect such large volumes of domestic telephone data to perform the analysis necessary to identify suspected terrorist activity.”

Just saying it is necessary may reflect that letter writer's opinion, but it doesn't make it a fact. It also does not establish any legality for such collection, while the Constitution does establish rights for Americans to protect them against such invasions of privacy.

"Mr. Franken said that he believed the administration now agreed that there needed to be greater public debate and disclosure, even though the White House has continued to defend the secret programs. “I think that if there were greater transparency, Americans would have a better understanding of these programs,” he said." (emphasis added)

They might have a better understanding, but that doesn't mean they would approve of them.

"While prominent Internet companies are pushing for fuller disclosure, some of the nation’s largest telecommunications firms were not willing to sign on, according to several people involved in the coalition. Some of those businesses have previously received legal immunity from Congress for their involvement with the Bush administration’s warrantless wiretapping program, and have close and longstanding ties to the N.S.A."

These companies actually are paid by the government for providing this information. I would also be suspicious of any company who has “close and longstanding ties to the N.S.A.”

But the Silicon Valley Internet firms that did sign did so because they are increasingly concerned that the N.S.A. controversy that erupted in the wake of Mr. Snowden’s disclosures could damage their credibility, particularly with customers overseas.” (emphasis added)

I am sorry, but I think their credibility has already been damaged. They would be better off if they backed less surveillance that is highly restrictive, with more stringent control, to ease the damage they have already incurred.

'The commercial issue is whether people around the world are going to trust American Internet companies with their data,' said Andrew McLaughlin, the chief executive of Digg, a social news Web site, and a former White House Internet policy adviser in the Obama administration. 'If you are in the government in Germany, you might think twice about using an American company as your cloud partner. You might see American companies not winning those kinds of contracts.'”

And well they should think twice about using a company that is open to divulging any and all private information their citizens may have revealed, both directly through actual communications or indirectly through metadata.

We still have a long way to go, but I don't think Congress is even going in the right direction on this issue. I still think they might be decoying us in the wrong direction to divert our attention from the real issues in this controversy.  Then, I believe they will make a few cosmetic changes, declare victory for the people, and the government will move on with little or no change.

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