It has been two months since updating this commentary - and that certainly is not to imply the scandal has faded, been investigated or resolved - it has grown like a hydra.
There is not much to update here...just more prove of corruption, including that the NSA does capture more than an estimated 75% of Internet traffic and does not limit its practices to terrorists, suspected terrorists or terrorists activities, or foreign operatives and persons.
The Office of the Director of National Intelligence took the unusual step of declassifying more than 100 pages of documents, amid the escalating public debate about government surveillance programs. The release comes several days after a report showed that the NSA had violated privacy rules and overstepped its authority thousands of times.
The Director of Intelligence recently lied to Congress in committee testimony. In the 2011 declassified documents, it was noted by the FISA court that "For the first time the government has now advised the Court that the volume and nature of the information it has been collecting is fundamentally different from what the court had been led to believe," John D. Bates, a judge on the surveillance court, said in October 2011.
Of course some have claimed that this is to be questioned because an 'ultra right-wing news organization' released this data. "Well, at least we have effective oversight. The court caught them doing something unauthorized, and hauled them up short. We can think of many examples in American history where Congressional, Presidential, or court oversight has caught someone with their hand in a cookie jar and made them put back the cookies. No different in this case. But, yes, if it makes you feel better, Dean, you were right."
What?! Every single item I disclosed in this commentary and discussions has come to fruition by disclosure, yet it is still a 'wait and see' approach for many. How do we put back these cookies? You are condoning their actions until caught. The point is they don't need the cookie jar, in the cookie jar or the cookies from the cookie jar. That cookie jar is mine, in my house and its hands off. If they suspect drugs or other illegal contents - get a warrant for my house and the cookie jar.
I graduated in 1984, now we are living it.
Move along, nothing important here...just proof that the NSA does more than keep 'phone numbers and dates'...
"The new documents show that the NSA collects, processes, retains and disseminates the contents of Americans’ phone calls and e-mails under a wide range of circumstances."
Are You an Enemy of the State?
Fourth Amendment and NSA Activities
Originally posted 06/19/2013
In full disclosure, I supported and defended the Patriot Act as passed in 2001. Unfortunately, lesson learned, each renewal of the Patriot Act has included broader powers. Originally the Patriot Act permitted the collection of data when it involved electronic communications of foreign individuals and groups with indicators (profiling) of reasonable suspicion of activities threatening national security. This data would be used by analysts to assist and determine if further focused investigation was warranted, and this information would support a probable cause affidavit for a FISA warrant (Foreign Intelligence Surveillance Act). The activities had to involve a foreign entity. The Patriot Act also brought the multiple intelligence and law enforcement agencies together.
I still support these underlying investigative principles and the purpose. What disturbs me is the apathy towards our Fourth Amendment by some. I truly understand their principles, but I disagree with the overreach and rights violations by our government.
The NSA testimony today (06/18/2013) was not new or enlightening. Everything said is essentially common knowledge and as expected. What was mentioned, but not expanded on, was that call data is obtained without a warrant and over 1,000 contract analysts are involved. Not very comforting - 1,000 people can leak any of billions of records to our enemies. Some call the NSA Analyst turned whistleblower, Edward Snowden, a traitor for alerting the American public to this. What if he, or any of 999 other analysts, gave this data and processes to our enemy?
The hearings are simply more CYA, pandering and appeasement.
My issue is the collection of all electronic communications data of all customers for cell phones – and one NSA official lied to Congress in an earlier hearing of this – and direct tie-in with ISP servers for emails and website visits. Government has misused and abused programs – including this one. It is government overreach and it is just wrong. I will not accept compromising our rights when there are viable alternatives to the same means. The end never justifies the unconstitutional means – this apathy is what is destroying our Constitution. (http://www.beerswithourfoundingfathers.com/3/post/2013/06/constitutional-apathy-is-destroying-our-country.html)
The key components of the program are:
- All of the electronic communications of all persons – domestically – are collected. This includes sender and receiver data (i.e. phone number, email address, IP addresses, etc.), all dates and times, and all length of communication. Enough to pin point a person and their location at any given time.
- Nine ISPs are directly accessed by NSA with live monitoring and storing of this data.
- Don’t believe that only Verizon customers are involved – most criminal use ‘drop phones’ or ‘pay per use’; and Verizon is a large landline provider.
- Over 1,000 contract analysts have access to this information.
- No reasonable suspicion is needed to collect this data – the service providers transmit these records daily.
- A FISA warrant is required, under the amended Patriot Act, only when the content of the communications is needed.
First, why Verizon? I believe Verizon is the primary target because, as the largest provider, every cell phone user frequently either calls and / or is called by a Verizon subscriber – this will lead to the pre-paid type cell phones; it is an investigative work around – so an innocent person’s data is used to target a suspect.
Below are a series of common justifications for the NSA scandal. These are bulleted and followed by my commentary. I certainly welcome yours.
- Collecting these phone numbers does not jeopardize or violate any person’s privacy.
- Only when collected data is clearly linked those of known terrorists now operating are those people investigated further.
- Those involved in criminal conspiracies such as terrorism do not have a right to privacy.
- NSA, the FBI, and the White House have identified over 50 thwarted incidents, and many of these have now been identified to the public.
- The end, preventing loss of lives by interrupting terrorist plans and operations, does justify the means and is legal.
As long as we do not snoop on law-abiding Americans, and these measures do not come anywhere near that.
- We do have judicial review of Patriot Act cases in the form of FISA search warrants.
- It is critical that we not get carried away with holding aloft the banner of individual rights of Americans.
- The FISA court has to approve these search warrants. This provides judicial review and oversight of our counterintelligence officers. This is the same way our local, state and federal law enforcement officers have to seek judicial review for their search warrants.
- Analysts will not listen to anyone's calls or investigate anyone if they are not communicating with terrorists. If they are, these individuals give up their right to privacy by virtue of their own criminal actions.
As I mentioned at the beginning of this commentary, I supported the initial concept of screening those with which reasonable suspicion was determined and capturing data and transmission was by subsequent probable cause warrant. There is NO justifiable reason to capture the call / email transmission data of virtually every electronic communication on a daily basis. This is invading the privacy of every American – domestic (remember, this is a foreign intelligence agency and activities. What is a law-abiding American? Traffic, petty offense - or just national security concerns? I know we have, disgustingly, Americans actively involved in terrorist activities and plots - Boston Marathon bombers are, Fort Hood killer is. These individuals, their plots and attacks were not analyzed – and no system is perfect enough to prevent 100% of any attempt. Terrorists are always at least one step ahead – they know what they want to do and plan accordingly – it is those plans our intelligence network is trying to detect and prevent. No person can justify why their data is captured and retained. Billions of records and 300 disclosed incidents – this demonstrates more focused investigative methods and enforcement are required.
As an example, I could agree to phone numbers, web addresses and email addresses being analyzed, live, with algorithms to determine patterns of activity, identify potential terrorists and terrorist activities. No person would see the data, nor would it be retained – simply crunched for patterns and an analyst alerted. At this point there is reasonable suspicion and the capturing of this data for further analysis would be justified and legal for further analysis to determine and support a probable cause search warrant for the actual communications. Exigent circumstances, currently justified and used by law enforcement, would also be provided for.
In the course of our justice system we are all familiar with, law enforcement has judicial review because they are prevented from making any detention without reasonable suspicion or arrest without probable cause. They cannot collect data ‘just in case’ it is needed for an investigation of a crime that has not been conspired or committed. The above analogy of judicial review is wrong – but is appropriate because if there were full judicial review, I would not have the problems with these existing intelligence activities. Law enforcement cannot cast a wide net hoping to get a little evidence. That's my issue - completely bypassing the Fourth to capture ALL data without a minimum of reasonable suspicion. Imagine if our society was told that in order to stop the illicit drug trade or other organized crime, the activities of the NSA would also be used. Who is to say it would not happen. The NSA has recently disclosed that 50 incidents were discovered and stopped. Most, if not all, of these incidents were already known; nothing new was released and won't be.
I value enforcing Constitutionality, not an overreaching government. As an example of recent overreach - the IRS seized 60 million medical records of 10 million people in California, including judges and their clerks, under a warrant sworn out for financial records. This is before the IRS officially enforces the new healthcare program. No overreach there. We can certainly trust the NSA and FBI, and of course the translucent White House, to keep themselves in check. Obama, "If people can't trust not only the executive branch, but also don't trust Congress and don't trust federal judges to make sure we're abiding by the Constitution and due process and rule of law, then we're gonna have some problems,".
Presently, if any of the 1,000 contract analysts determines additional data is needed for investigative purposes, they then query the data and use that for the probable cause affidavit supporting a warrant for the content of the communications. That is completely backwards of our Fourth Amendment and judicial process. That is why our Constitutional rights are being violated. Moreover, criminal actions do not negate right to privacy - what they do is provide probable cause to lower the protection of privacy – that becomes the search warrant.
Who is preventing who from exploiting the data that is captured or retained? FISA only sees what is presented to them. The IRS and DOJ have ignored laws and policies - how are we guaranteed this won't be. Virtually 100% of every person’s electronic communications data is collected and retained. Why? Don't tell me that if a person has nothing to hide, not to worry - we all have the right to not have our privacy compromised.
- I am not concerned at all about the government collecting records of numbers I call on my cell phone or landline.
- No one takes the time to look at my records unless I were to call a known terrorist. Then I would, and should be, scrutinized more closely, this time with a FISA warrant.
- The Supreme Court has already ruled that methods of this type DO NOT violate the Fourth Amendment.
- As a computer forensic examiner, I would agree with you, Dean, that not every American should have everything on his hard drive available for government inspection - unless or until he or she engages in criminal activity. Then, with the proper warrant, the government can look at all that information with proper authorization from a court. I see no overreaching by the government in using these methods.
That apathy is dangerous and apathy is destroying our Constitution. This is not just numbers called. Virtually all of the electronic communications of all persons – domestically – are collected. This includes sender and receiver data (i.e. phone number, email address, IP addresses, etc.), all dates and times, and all length of communication. Enough to pin point a person and their location at any given time. The activities are not incumbent on communicating with a ‘known terrorist’. The data is collected and analyzed with algorithms to determine patterns of activity, identify potential terrorists and terrorist activities. How about NSA or FBI coming in daily to collect every individual’s computer data and store it? Just in case and that way when they need and get a FISA warrant, they have it. A person does not have to be a known terrorist – that is completely untrue. How about the reporter who was accused of espionage in an affidavit and potentially facing prosecution (only to have the AG say there was no intent to prosecute)? How did the DOJ know what 20 AP numbers to capture all data and communications from? How did they know to do the same with the reporter – and his family (surely they were not accused of espionage)? Moreover, the Attorney General perjured himself when he signed the affidavit How about the two new whistleblowers who have proven their electronic communications were captured and recorded?
I completely and 100% want effective anti-terrorist efforts and success - but I am 100% opposed to this data mining as a 'just in case'. This data capturing of all electronic data is without anyone engaging in any criminal activity - that is the point and is what violates our Constitutional rights.
- In this digital age - and in the ongoing state of war we are in and will be for some time - different measures and tactics must be used.
- If the government abuses our trust and misuses this data, it will come out, and heads will roll, as they have in the latest IRS fiasco.
- I believe my privacy, personally, has not been compromised in any way. No one cares or wants to know which bill collector I have called, what doctors I am making appointments with, the fact that I called my wife or daughter or next-door neighbor. But they will care if I happen to call a terrorist in Yemen who is already known to be hatching plots against the good ol' USA!
IF 'the government abuses our trust and misuses this data' - this abuse and misuse is growing by the day and no heads have rolled, but the rights of thousands of law-abiding Americans have been violated without justification. This apathy of privacy and rights - no harm unless compromised - is the point. When the government has reasonable suspicion to believe a person is doing more than making routine phone calls and email communications, then perhaps the process of capturing that individual’s data – but not everyone's - exists. We are to be protected from the abuse and misuse of government - not complain after it happens.
Now that the IRS is seizing medical records under a financial records warrant - perhaps there is cause to reel them in. But that's just the IRS, not the NSA, FBI or other agency. The banner of our Fourth Amendment is more important than the banner of just-in-case security.
Apathy - it doesn't concern me because I have done nothing wrong – is destroying our Constitution. Why not stop every vehicle to make sure no one is driving intoxicated - that should prevent all alcohol related traffic fatalities. If a driver has nothing to hide, a few extra minutes to and from their daily work and errands should not be a violation of rights, privacy or any concern.
The US Supreme Court is not always right - they were wrong on Dred Scott, and I am not obligated to agree with their decisions that condone tearing at our Bill of Rights. For those feeling apathy towards these activities and our Constitution, let's stop everyone for DUI checks, capture everyone's hard drives, and forget reasonable suspicion and probable cause - because if the government wants it, that's all good...just in case, and there is nothing to fear unless you have done nothing (yet not defined) wrong.
For that matter, why not let the government come in and catalog all of your firearms, serial numbers and ammunition. Just in case. If you have nothing to fear, this violation of your Second Amendment should not concern you. Similarly, when this data is used to prosecute a person for exercising their First Amendment, what will be said?
I am simply stating that at the very least reasonable suspicion is the minimum to begin collecting the electronic communications data, and probable cause is the minimum for capturing the communications content. That satisfies all arguments. That's my unapathetic position.
Dean A. Beers, author
Blog - www.WeLoveOurUSA.com