Sunday, June 9, 2013

The NSA story and the role of government

For my own benefit as much as anyone else's, I'd like to recap where we are right now on this whole story about what the NSA is doing. I feel overwhelmed with noise these days and would like to think that its possible to deal with the facts we have now in order to have a rational discussion about the issues at hand - silly me ;-)

First of all, we know that NSA is collecting metadata on phone calls. It seems to me that what David Simon said about that rings true - its analogous to what law enforcement has always done, but bigger in scope due to advances in technology.

I found this description by Mark Ambinder about what's happening to be really helpful for us non-techies.
One official likened the NSA's collection authority to a van full of sealed boxes that are delivered to the agency. A court order, similar to the one revealed by the Guardian, permits the transfer of custody of the "boxes." But the NSA needs something else, a specific purpose or investigation, in order to open a particular box. The chairman of the Senate intelligence committee, Sen. Dianne Feinstein, said the standard was "a reasonable, articulatable" suspicion, but did not go into details.

Legally, the government can ask companies for some of these records under a provision of the PATRIOT Act called the "business records provision." Initially, it did so without court cognizance. Now, the FISC signs off on every request.

Armed with what amounts to a rubber stamp court order, however, the NSA can collect and store trillions of bytes of electromagnetic detritus shaken off by American citizens. In the government's eyes, the data is simply moving from one place to another. It does not become, in the government's eyes, relevant or protected in any way unless and until it is subject to analysis. Analysis requires that second order.

And the government insists that the rules allowing the NSA or the FBI to analyze anything relating to U.S. persons or corporations are strict, bright-line, and are regularly scrutinized to ensure that innocents don't get caught up in the mix. The specifics, however, remain classified, as do the oversight mechanisms in place.
So the first question we have to ask ourselves is whether or not we're comfortable with that van full of sealed boxes being delivered to the government. Beyond how commonplace this kind of thing is with law enforcement, what Simon was pointing out in his article is that the real issue is the rules/oversight that govern whether or not they can open up one of those boxes.  Basically the FBI has to present the FISA court with a justification for that and the Intelligence Committee in the Senate is briefed on when/why they do so. This is one of the main ways that President Obama's implementation of all this differs from what Bush wanted to do.

The question here is whether or not that is enough oversight; does the public at large need to be involved? Answering that question means knowing whether or not providing the public with more information about it would neutralize the effectiveness of the program by broadcasting its workings to the people its targeted to catch.

I'll admit that I don't know the answer to that question. If there is more we can learn without jeopardizing the effort - then we should demand that information. But if opening it up to public scrutiny would pose a problem, then we have to grapple with the question the President posed about the balance between transparency and security.

As you know, I've been writing a lot here about trust. Beyond these questions I'm posing, I think this issue of transparency vs security raises a critical question about the very structure of our government. The other day I put that question in a tweet:
(Of course that should be "than NSA surveillance," but there's no editing on twitter)

I'm not suggesting that we should trust congress or the courts. I'm merely saying that if we don't - we have MUCH bigger problems. As I've pointed out recently, our government was designed to be a "representative democracy," - not a majority rule. By setting things up that way, our founders entrusted certain decisions to those we elected to represent us. That needs to be balanced with an informed public that doesn't simply depend on blind trust.

I believe that a lot of the questions being raised these days are pushing at that balance. Overall the tone of many of the recent so-called "scandals" boils down to an attempt to suggest that the government is over-reaching. While the Republicans have joined on the bandwagon in order to discredit President Obama, it is the libertarian wing of our political spectrum that is gaining a foothold here. In a venomous screed today about President Obama, Maureen Dowd (who used to be counted among those who call themselves liberals) demonstrates how she's joining that bandwagon.
The president insists that his trellis of surveillance programs is “under very strict supervision by all three branches of government.” That is not particularly comforting given that the federal government so rarely does anything properly.
As I've said before, I understand the mindset that recognizes that there are those who have abused their power as representatives of the people. We need to be vigilant in carrying out our duties as citizens. But one of the main tenants of liberalism is a belief in the idea that robust government is necessary to reign in the overreach of capitalism. At least that's one of the main reasons I'm a liberal in the first place. The last thing I want to do is join in with Republican-based libertarianism in trashing the role of government. As a matter of fact, I'd say that advancing the role of good government is the most potent way liberals have of making progress on our goals.

14 comments:

  1. I am more concerned with the possibility of large scale data mining moving into the private sector. Government is developing the techniques, the algorithms. Multinational corporations will be the ultimate abusers.

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    1. I'm not very tech savy on all this - but isn't the private sector already doing that?

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    2. They are (retail sales is one area), but not to the extent and not with the tools, both data mining tools and predictive tools, that the government is...yet. Target advertising is just the tip of the iceberg.

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    3. There have been databases for years where you can get info on a person, (sometimes including their SS #s) where they've lived and worked all their lives, the addresses of all the homes they've owned, names of family members, clubs they belong to, where they go to church, motor vehicle registrations along with boats and airplanes, liens, aliases, criminal activity, if any, etc. Most newspapers have access to them and you can bet the Washington Post does too. Heh-heh. PIs use them as well as development researchers and attorneys. It is called trace searching. And by the way, most of this information is a matter of public records but advanced technology is faster.

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  2. nationofmillionsJune 9, 2013 at 12:54 PM

    It was just a few weeks ago when Politico declared war on the White House on behalf of 'da Village. And jeez louise they weren't kidding. The amount of sewage spewing forth from the supporters, collaborators, and enablers of the dubya/dick vader fuck-the-world agenda has been massive. But, as they are the Gang Who Couldn't Shoot Straight, it's all gone a bit pear-shaped, inn'it? Forget 11th dimmensional chess, playing peek-a-boo with a baby presents more of a challenge. Reminds me of the "Dangerous, But Inept" skit from the original Not Ready For Prime Time Players - the only SNL that matters.

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  3. You're really killing it over here on this stuff. Thanks for all you do. - ABL

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    1. Thanks! That means a lot coming from someone I respect as much as I do you.

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    2. We talk a lot about the role that social media plays in worldwide struggles...it is that same social media here in the US that is saving our bacon...what I mean is that it is thru social media that the lies and distortions are being debunked...average citizens are no longer at the mercy of MSM...we have an alternative source for information and news....and I feel good that we do...

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  4. I really don't think the standard for secrecy can be "is there any chance at all that revealing the existence of these programs could make it harder to run them" because that is the flip side to the standard that says we can't collect mass information as long as there is *any* risk that an innocent person might be subject to unwarranted scrutiny. There are trade-offs in all of this, but maintaining a principle of absolute security is just as unwise as a principle of absolute privacy. In fact, I think this absolutism can increase the risk of bad things happening because when the truth of the program inevitably leaks a lot of under-informed people will freak out and over-react and create situations that are even worse.

    The existence of the program doesn't bother me. What bothers me is the idea that those in the know can't even talk about the existence of the program.

    It's the secrecy that is the real poison to our liberties.

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    1. We might have finally found a place where we disagree Chris.

      I think that a certain amount of secrecy in government is necessary for them to be able to do their job - especially in the area of law enforcement. And efficacy - for me - is part of that equation. Its not the only factor, but I'm comfortable with it being in the mix.

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  5. I don't think I've ever commented here before, and I certainly don't want your "regulars" to think I'm going all Orange Satan on this, but two things: #1 - remember how most of us originally felt about the Patriot Act & and its related laws? We hated it because of its intrusive nature into our privacy and Big Brother nature. I don't think we should feel any different about it today - even if what is being done is legal under that act. #2 - to me the question is NOT do I trust Barrack Obama (and I generally do. I think his heart and mind is in the right place), but rather, did I trust George W. Bush and his crew, and will I trust some unknown President in the future. And unfortunately, no, I did NOT trust Bush/Cheney, nor do I wish to trust some unknown future President. So - bottom line - do I feel particularly nervous that President Obama has this power? Not so much. Do I feel nervous that the NSA has this power, and that Bush & Company had this power, and some unknown President of the future will have this power? Absolutely. So the tack to take isn't to excoriate the President for having power that existed when he came into office, nor is it to spend lots of time talking about trusting THIS President. I think the tack to take is to use this opportunity to argue that NO President and NO NSA and NO Congress should have this power, and get the law repealed or fixed.

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    1. My one response to your comment is that this is not a power we have given to the president. That's why I went into detail about the way it works. Both the courts and congress are involved - that's part of the checks and balances created by our constitution.

      Now if you wanted to suggest that this is not a power we want to give to the three branches of government - I think that's a valid question.

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    2. I agree with both of you. The discussion we need to be having is how do we repeal and/or reform the Patriot Act. We also need to update and in many cases create new law that will protect our right to privacy in an electronic world. Our Founding Father would be gobsmacked with what we have today and our laws have not kept up at all.

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    3. Smarty -- I understand your distinction, and I am also old enough to remember Nixon and his attempts to subvert other branches of government to his will. I do NOT expect that of Obama, but I do worry about others in the role. But back to my main point - which is that it IS a power we have given to government and its agencies, and I would hope that you consider it not only a valid question, but one that should be answered "uh - I don't think so," because I believe that was how the vast majority of progressives and liberals felt about the Patriot Act when it was being debated and passed. So I agree with Anon above - repeal or reform the act.

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