Is it just me or does the entire news media — as well as all the agitators and self-righteous bloviators on both sides of the aisle — not understand even the rudiments of electronic intercepts and the manner in which law enforcement actually uses such intercepts? It would seem so.
Because the national eruption over the rather inevitable and understandable collection of all raw data involving telephonic and internet traffic by Americans would suggest that much of our political commentariat, many of our news gatherers and a lot of average folk are entirely without a clue.
You would think that the government was listening in to the secrets of 200 million Americans from the reaction and the hyperbole being tossed about. And you would think that rather than a legal court order which is an inevitable consequence of legislation that we drafted and passed, something illegal had been discovered to the government’s shame.
Nope. Nothing of the kind. Though apparently, the U.K.’s Guardian, which broke this faux-scandal, is unrelenting in its desire to scale the heights of self-congratulatory hyperbole. Consider this from Glenn Greenwald, the author of the piece: “What this court order does that makes it so striking is that it’s not directed at any individual…it’s collecting the phone records of every single customer of Verizon business and finding out every single call they’ve made…it’s indiscriminate and it’s sweeping.”
Having labored as a police reporter in the days before the Patriot Act, I can assure all there has always been a stage before the wiretap, a preliminary process involving the capture, retention and analysis of raw data. It has been so for decades now in this country. The only thing new here, from a legal standpoint, is the scale on which the FBI and NSA are apparently attempting to cull anti-terrorism leads from that data. But the legal and moral principles? Same old stuff.
Allow for a comparable example, dating to the early 1980s in a place called Baltimore, Maryland.
There, city detectives once began to suspect that major traffickers were using a combination of public pay phones and digital pagers to communicate their business. And they took their suspicions to a judge and obtained court orders — not to monitor any particular suspect, but to instead cull the dialed numbers from the thousands and thousands of calls made to and from certain city pay phones.
Think about it. There is certainly a public expectation of privacy when you pick up a pay phone on the streets of Baltimore, is there not? And certainly, the detectives knew that many, many Baltimoreans were using those pay phones for legitimate telephonic communication. Yet, a city judge had no problem allowing them to place dialed-number recorders on as many pay phones as they felt the need to monitor, knowing that every single number dialed to or from those phones would be captured. So authorized, detectives gleaned the numbers of digital pagers and they began monitoring the incoming digitized numbers on those pagers — even though they had yet to learn to whom those pagers belonged. The judges were okay with that, too, and signed another order allowing the suspect pagers to be “cloned” by detectives, even though in some cases the suspect in possession of the pager was not yet positively identified.
All of that — even in the less fevered, pre-Patriot Act days of yore — was entirely legal. Why?
Because they aren’t listening to the calls.
It’s at that point, people, that law enforcement requires a full-throated argument of probable cause. It’s at that point that privacy rights must be seriously measured against the legitimate investigate needs of law enforcement. And it’s at that point that the potential for authoritarian overreach becomes significant.
I know it’s big and scary that the government wants a data base of all phone calls. And it’s scary that they’re paying attention to the internet. And it’s scary that your cell phones have GPS installed. And it’s scary, too, that the little box that lets you go through the short toll lane on I-95 lets someone, somewhere know that you are on the move. Privacy is in decline around the world, largely because technology and big data have matured to the point where it is easy to create a net that monitors many daily interactions. Sometimes the data is valuable for commerce — witness those facebook ads for Italian shoes that my wife must endure — and sometimes for law enforcement and national security. But be honest, most of us are grudging participants in this dynamic. We want the cell phones. We like the internet. We don’t want to sit in the slow lane at the Harbor Tunnel toll plaza.
The question is not should the resulting data exist. It does. And it forever will, to a greater and greater extent. And therefore, the present-day question can’t seriously be this: Should law enforcement in the legitimate pursuit of criminal activity pretend that such data does not exist. The question is more fundamental: Is government accessing the data for the legitimate public safety needs of the society, or are they accessing it in ways that abuse individual liberties and violate personal privacy — and in a manner that is unsupervised.
And to that, the Guardian and those who are wailing jeremiads about this pretend-discovery of U.S. big data collection are noticeably silent. We don’t know of any actual abuse. No known illegal wiretaps, no indications of FISA-court approved intercepts of innocent Americans that occurred because weak probable cause was acceptable. Mark you, that stuff may be happening. As happens the case with all law enforcement capability, it will certainly happen at some point, if it hasn’t already. Any data asset that can be properly and legally invoked, can also be misused — particularly without careful oversight. But that of course has always been the case with electronic surveillance of any kind.
Keep in mind that the FISA court was created as a means of having some definitive oversight into a world that previously had been entirely unregulated, and wiretapping abuses by the U.S. executive branch and by law enforcement agencies were in fact the raison d’etre for the creation of FISA and a federal panel of judges to review national security requests for electronic surveillance. Is it perfect? Of course not. Is it problematic that the court’s rulings are not public? Surely.
But the fact remains that for at least the last two presidential administrations, this kind of data collection has been a baseline logic of an American anti-terrorism effort that is effectively asked to find the needles before they are planted into haystacks, to prevent even such modest, grass-rooted conspiracies as the Boston Marathon Bombing before they occur.
So think for a minute about a scenario in which, say, a phone number is identified overseas as being linked to terror activity. It is so identified by, say, NSA overseas intercepts or through intelligence gathering by the CIA or the military. And say that there exists a database of billions and billions of telephonic contacts in the United States over a period of months or years. And say a computer could then run the suspect number through that data base and determine a pattern of communication between that overseas phone and several individuals in New York, or Boston, or Detroit. Would you want that connection to be made and made quickly? Or do you want to leave law enforcement to begin trying to acquire the call history on that initial phone from overseas carriers who may or may not maintain detailed retroactive call data or be unwilling to even provide that data fully to American law enforcement or do so without revealing the investigative effort to the targets themselves?
Keep in mind that law enforcement must still establish probable cause to then begin to actually monitor conversations on the domestic numbers, and that this request for electronic surveillance is then, of course, subject to judicial review by the FISA court.
Yes, I can hear the panicked libertarians and liberals and Obama-haters wailing in rare unison: But what about all the innocent Americans caught up in this voracious, overreaching dragnet? To which the answer is obvious if you think about the scale of this: What dragnet?
Your son’s devotional calls to 1-800-BEATOFF? Your daughter’s call from the STD clinic? Your brother-in-law calling you from his office at Goldman with that whispered insider-tip on that biomed stock? Is that what you’re worried about?
Take a deep breath and think:
When the government grabs the raw data thousands of phone calls, they’re probably going to examine those calls. They’re going to look to establish a pattern of behavior to justify more investigation and ultimately, if they can, elevate their surveillance to actual monitoring of conversations. Sure, enough.
When the government grabs every single fucking telephone call made from the United States over a period of months and years, it is not a prelude to monitoring anything in particular. Why not? Because that is tens of billions of phone calls and for the love of god, how many agents do you think the FBI has? How many computer-runs do you think the NSA can do? When the government asks for something, it is notable to wonder what they are seeking and for what purpose. When they ask for everything, it is not for specific snooping or violations of civil rights, but rather a data base that is being maintained as an investigative tool.
There are reasons to object to governmental overreach in the name of law enforcement and anti-terrorism. And it is certainly problematic that our national security apparatus demands a judicial review of our law enforcement activity behind closed doors, but again, FISA is a basic improvement on the preceding vacuum it replaced. Certainly — and I find myself in rare agreement with the Rand Pauls of the world on this one — we might be more incensed at the notion of an American executive branch firing missles at U.S. citizens and killing them without the benefit of even an in absentia legal proceeding. Or ashamed at a racially-targeted sentencing guideline that subjects rock cocaine users to seventeen times the penalty of powdered-cocaine users? Or aghast at a civil forfeiture logic that allows government to seize private property and then requires citizens to prove a negative — that it was not purchased with money from ill-gotten gains.
There is a lot of authoritarian overreach in American society, both from the drug war and the war on terror.
But those planes really did hit those buildings. And that bomb did indeed blow up at the finish line of the Boston marathon. And we really are in a continuing, low-intensity, high-risk conflict with a diffuse, committed and ideologically-motivated enemy. And for a moment, just imagine how much bloviating would be wafting across our political spectrum if, in the wake of an incident of domestic terrorism, an American president and his administration had failed to take full advantage of the existing telephonic data to do what is possible to find those needles in the haystacks. After all, we as a people, through our elected representatives, drafted and passed FISA and the Patriot Act and what has been done here, with Verizon and assuredly with other carriers, is possible under that legislation. Indeed, one Republican author of the law, who was quoted as saying he didn’t think the Patriot Act would be so used, has, in this frantic little moment of national overstatement, revealed himself to be either a political coward or an incompetent legislator. He asked for this. We asked for this. We did so because we measured the reach and possible overreach of law enforcement against the risks of terrorism and made a conscious choice.
Frankly, I’m a bit amazed that the NSA and FBI have their shit together enough to be consistently doing what they should be doing with the vast big-data stream of electronic communication. For us, now — years into this war-footing and this legal dynamic — to loudly proclaim our indignation at the maintenance of an essential and comprehensive investigative database while at the same time insisting on a proactive response to the inevitable attempts at terrorism is as childish as it is obtuse. We want cake, we want to eat it, and we want to stay skinny and never puke up a thing. Of course we do.
When the Guardian, or the Washington Post or the New York Times editorial board — which displayed an astonishing ignorance of the realities of modern electronic surveillance in its quick, shallow wade into this non-controversy — are able to cite the misuse of the data for reasons other than the interception of terrorist communication, or to show that Americans actually had their communications monitored without sufficient probable cause and judicial review and approval of that monitoring, then we will have ourselves a nice, workable scandal. It can certainly happen, and given that the tension between national security and privacy is certain and constant, it probably will happen at points. And in fairness, having the FISA courts rulings so hidden from citizen review, makes even the discovery of such misuse problematic. The internal review of that court’s rulings needs to be somehow aggressive and independent, while still preserving national security secrets. That’s very tricky.
But this? Please. This is bullshit.
In Baltimore thirty years ago, after the detectives figured out which pay phones were dialing pagers, and then did all the requisite background checks and surveillance to identify the drug suspects, they finally went to a judge and asked for a wiretap on several pay phones. The judge looked at the police work and said, okay, you can record calls off those public pay phones, but only if you have someone watching the phones to ensure that your suspects are making the calls and not ordinary citizens. And if you make a mistake and record a non-drug-involved call, you will of course “minimize” the call and cease recording.
It was at that point — and not at the earlier stage of gathering thousands and thousands of dialed numbers and times of call — that the greatest balance was sought between investigative need and privacy rights. And in Baltimore, that wiretap case was made and the defendants caught and convicted, the case upheld on appeal. Here, too, the Verizon data corresponds to the sheets and sheets of printouts of calls from the Baltimore pay phones, obtainable with a court order and without any demonstration of probable cause against any specific individual. To get that far as a law-abiding investigator, you didn’t need to know a target, only that the electronic medium is being used for telephonic communication that is both illegal and legal. It’s at the point of actually identifying specific targets and then seeking to listen to the conversations of those targets that the rubber really hits the road.