The Insidious, Clueless, Cynical Defense of Data Surveillance

images-1It may be simplistic to accuse President Obama, the NSA, a collaborative Congress, and the government as a whole of seeking police state powers via the recently revealed surveillance of millions of phone customers and Internet users. After all, none of us have been dragged out of our beds and arrested because we were overheard complaining that Obama hasn’t been any better than Bush when it comes to civil liberties. However, that hardly lets the President or other branches and agencies of government off the hook.The various justifications for the NSA surveillance program reveals something that, if not as frightening as a flagrant police state, is an insidious and long-term threat to the rights that represent the foundation stones of what remains of American democracy. That the President just doesn’t seem to get it makes the program that much more disturbing.As Obama often does when defending civil liberties incursions, his defense on Friday was based on the implicit assurance that he, “President Hope”, is too decent to abuse these”uh, these abuses. In a condescending tone he tells the American people that he also had doubts but “there are some trade-offs involved”We scrubbed them [the programs] thoroughly.” Senator Harry Reid of Nevada, that bastion of integrity and lofty governmental aspiration, advised that “Everyone just calm down and understand this isn’t anything that is brand new.”Ah, the lingo of the technocrats. The President who picked and chose targets for assassination by drone and refused to prosecute the torturers among us but did persecute their whistleblowers, assures us that he’s okay with the trade-offs between civil liberties and safety and that the programs, in one of those maddeningly technocratic, meaningless terms, were “scrubbed”.It’s also no surprise that Director of National Intelligence James Clapper Jr. also uses language intended to soothe and justify. Documents that Clapper released from the program, known as PRISM, were intended to “help dispel some of the myths and add necessary context to what has bee published.” ( ). It turns out the emails, videos, documents, etc. were collected from nine major Internet companies under statutes approved by Congress under the Foreign Intelligence Surveillance Act. And all phone records, as the President notes, have to be approved by the FISA court. Clapper says he found the leaks “gut-wrenching” and accused Glenn Greenwald, the Guardian’s reporter who broke the story, of knowing nothing about the program. He wants to prosecute the leakers; both Republican and Democratic Congressional leaders have denounced them.Clapper rolls out what is always used as the ultimate clincher: the leaks harm our ability to track threats to our national security and he found them gut-wrenching. These programs have already “contributed to successful operations to impede the proliferation of weapons of mass destruction and related technologies.” They have given us crucial information on the “proliferation of [terrorist] networks”.

Ah, there they go again. The weapons of mass destruction! The invisible, insidious networks! Well, I’m sure they have, since “related technologies” include every armament, every computer, every bit of high tech equipment. “Networks”, by current intel standards, can refer to any identified interaction with even the slightest whiff of oppositional points of view.

Obama, Clapper, Feinstein, and the other outraged defenders of government wisdom ignore the fact that their justifications are, as presented, as vague as George W. Bush’s rationales for attacking Iraq. The so-called statutory and court-sanctioned filters that they claim protect civil rights are, in fact, laws and courts put into place with the intent to enable government incursion into American’s private lives. They are not long-standing procedures and laws that have always protected Americans; they are post 9/11 statutes whose purpose was to grant government unprecedented powers. So the fact that the data collection was done under those auspices is basically meaningless.

They really are either clueless or utterly cynical. Perhaps the latter. After all, The New York Times article by Peter Baker and David Sanger reports that initial reactions seem to indicate most Americans are unperturbed by the surveillance. (Whether or not that is true, it won’t make it right). The cluelessness, however, lies in how easily politicians, especially the President, talk about our rights as if they’re so easily tradable, trimmable, and tractable. How “safe” is safe? There is no quantifiable measure of safety, especially when the government itself tells us how fearful we should be. Nice equation: they tell us how insecure we should feel and then suggest we give up our rights so we’ll feel better. One guarantee: no end in sight.

What happens after Obama leaves office? Obama did not close Guantanamo, repeal the Patriot Act, rule out the use of torture, or prosecute those who turned torture into national policy. He has prosecuted whistle blowers with unprecedented avidity even though press leaks and whistleblowing are a time-honored balance to the abuses of government power. He continued the weakened FISA standards for warrantless wiretaps. And let’s not even drone on about drones, at least for the moment. So what is to prevent a future president from embracing these practices and extending their power? Obviously”Nothing.

The other problem is that the President, per se, does not oversee these programs from top to bottom. Once information is collected, it’s in circulation and can be used by the National Security Agency itself, other intelligence agencies, hackers, leaks, police agencies, and whoever gets a hold of them.

Now I believe the President when he states that the phone calls weren’t listened to. Even Homeland Security, with its insane funding, doesn’t have the personnel to listen in on billions of calls.

There is something seedy about that claim, however, because listening to all those calls was never the point. The President defends the practice by misrepresenting how data is utilized. It’s as if a Peeping Tom protested that he just wanted to watch through the window, he didn’t really want to listen in on the conversation. The purported value of such data lies in identifying call patterns that point to potential terrorist activity. The President and others have explained that they’re just interested in any calls made to or from a suspected terrorist. Okay, we get it.But if you know who the suspected terrorists are to begin with, why don’t you just monitor the calls going to and from their telephones? How in the world does a total sweep of all phone calls even help fulfill the stated objective? It can only dilute and confuse the data. It is stupid if that is the only intent.

Still, this has been going on for a long time but, contrary to Harry Reid, that’s not exactly a comfort. The NSA’s Total Information Awareness (TIA) program and the gigantic collection of servers and computers under construction in Nevada that will store and analyze all digital activity on the part of U.S. citizens, been public knowledge for years. Americans have accepted the Patriot Act and its renewal; warrantless wire-taps (since rescinded) with barely a peep; and the TIA approach to monitoring citizens with a shrug. We should be grateful that there are still voices that are shocked! shocked to find that surveillance is going on in this establishment!

The President stated that every member of Congress has been briefed on this program. Some have denied it. Either way, this raises questions about Congressional independence. Does the magical invocation of “national security” render Congress impotent to safeguard civil liberties? (Rhetorical question). Did Congress debate these polices? Did the leak spring from Congress itself and will pursuit of the leak lead Obama into an embarrassing political stand-off with Congressional partners?

The problem isn’t only on the “rights” side of the question. The devotion of billions of dollars in personnel, buildings, equipment, energy, and time to the TIA approach is virtually useless in combatting terrorism. Every dollar that goes to this approach is money not spent on more efficient investigatory methods. The Boston Marathon bombings were carried out by a man already investigated by the FBI as a potential terrorist. Did the resources required to keep track of him go instead to the ultra-costly effort to collect every Verizon call, Skype transmission, or the billions upon billions of personal traces left on the web sites of Apple, Microsoft, Yahoo, etc.?

When the President states: “They [the data] may identify potential leads with respect to folks who might engage in terrorism,” he is tipping his hand. Every police state uses this exact justification: “we only interrogate those who may pose a threat to the state”. This can include anyone, as the laughable but disturbing FBI guidelines for spotting potential terrorists makes clear ( Once the mechanisms and rationales for trimming our rights are in place, limits to abuse rest on the good will of those in power. Consequences for “suspicious” behavior need not be extreme to be dangerous and harmful; for instance, one can lose a job or government contract because of questions raised about one’s loyalty, motives, or even presumed lack of discretion.

The warrantless collection of mass data can–and indeed, already has–become an end in itself. The real goal is not preventing terrorism. The TIA approach is a wasteful diversion. It’s done because it can be done. It’s done because the government and corporations understand that possessing, analyzing, and manipulating information is the key to power in the Information Age. Deprivation of civil liberties is always initially justified as a means of fighting crime. But precedent builds on precedent until rights come to be viewed as a sort of currency: we’ll make you safer if you give us more control over your lives. It’s a devil’s bargain.

That is why the government is always so hot to be granted the powers of warrantless searches. Warrants could allow the government access to Verizon’s phone records, for example, if they show cause that a certain pre-specified set of records is relevant for an ongoing investigation. That is legitimate in the pursuit of criminals of all types. It is focused, limited, vetted by more than one arm of government, and based on actual evidence that a criminal act is imminent or underway. It is solid investigatory procedure, with controls against abuse. When the government claims unrestricted and unwarranted access to personal information, it dissolves the protections that warrants, habeas corpus, the Bill of Rights, and Miranda rights help establish.

The final kicker is that everybody knows that the potential for using personal information is only hinted at by current applications. Much of the future will unfold in the digital cyber-realm. The real goal of total data sweeps is complete control over this realm–its norms, environment, highways and byways, and all aspects of our lives that unfold in cyberspace. Control of information and communication in this realm will facilitate control over our physical lives. Even if President Obama would never utilize it thus, he is only the President. The system is in place and those lining up to use it are, due to numbers and intrinsic power, beyond the scope of any president to control even if he or she had the will and inclination to do so. Still, the President of the United States should not be leading the charge.

This article first appeared at on June 10,2013

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