NSA 8To understand the function of such a FISA order, consider an (admittedly flawed) analogy to the world of ordinary searches,” Kris wrote in his article for Balkinization. “Imagine that the FBI obtains a warrant to search for drugs anywhere in New York City. Standing alone, this seems too broad — a clear particularity clause problem. But now imagine that the warrant provides expressly that while the FBI has nominal authority to search all buildings in New York, it may not enter any particular building unless a Supervisory Special Agent or higher-ranking official finds probable cause that drugs are indeed located within that building. Rightly or wrongly, this is the basic idea behind the . . . orders described above.”

What he is inferring, I believe, is two-fold. First, as supported by Snowden’s leaks, expanding the definition of a “facility” to mean everything that happens on the internet or in telephonic communications allows the NSA’s computers a truly massive universe of data to mine for initial clues of wrongdoing: patterns of telephone calls, distant-but-possible chains of communications that seem suspicious, keywords, et. al. Second, a certified NSA collector (or higher-ranking official) can determine when someone deserves a closer look, then the content of any particular caller or emailer can be surveilled directly, without any further warrant being issued. If the snooping turns up something terrorism-related, the NSA is off to the races. If it’s some other major crime, a memo is sent to the FBI. If it does not produce anything actionable, then the monitoring can be dealt with through the processes of “minimization.” As it stands, the protocols for “minimization” state that the metadata — and the content of any unintentionally surveilled communications — can be stored for five years. For those of you currently using an encryption program on your internet communications, your data can be stored indefinitely as the use of such programs is considered prima facie suspicious.

And for all of us, it should be remembered that no one outside of the NSA is checking to make sure the NSA is actually following these procedures. Moreover, if history is any guide, they may have jettisoned these rules and regulations wholesale, and we’d never be the wiser, unless someone like Snowden decides to blow the whistle.

 

It is important to note that the last bit about the ability of NSA collectors to choose to move from the metadata to the content of your conversations is speculative. No one has leaked that document, yet. But it does seem to follow from what we know of current capabilities of surveillance systems, the nearly infinite capacities of modern data storage and the lack of any real oversight of those doing the collecting.

Yet, if you are willing to take that leap of reason with me, I’m willing to wager that this is the leak the NSA and the Obama administration truly fear because it is the one that could actually upset people enough that they would demand change.

Right now, the intelligence community and the Obama administration are in a manageable crisis. The administration swears up and down the flagpole that no one is listening in on your phone calls. It’s just the metadata, promise. But are they recording those phone calls, tweets, text messages and emails to be scoured after the fact? The capacity to do so only requires the ability to store and process all the information, and the NSA is planning ahead to meet that need. Currently the U.S. government is building its intelligence community a new campus called the Utah Data Center, a collection of large buildings housing supercomputers with a storage capacity measured into the septillions of bytes. Yet, as it stands, we’re once again being asked to trust the investigators not to overstep their legal bounds as they struggle daily to prevent terrorists from murdering thousands, if not millions, of innocent people. In a large part because of the importance of that mission, it seems a dicey proposition to the Surly Bartender.

And those in power are right to be fearful of such a revelation. It might be creepy that someone, somewhere, is keeping a record of who you call, how long you were on the phone, and the time of day you made contact with either your mom or your weed dealer. But it would be another thing entirely if we were to discover that hundreds of thousands, possibly millions, of innocent civilians had an unwanted listener actually on the line.

Is it too far a jump to suppose the numbers are that high? Hundreds of thousands? Millions?

In my estimation, likely not.

First, axiomatically, I ask you to accept that there needs to be a point at which the NSA computers, working off the metadata (and likely off of key words within the conversations themselves) decide that it’s time to kick out the results of the terrorism algorithm to a human being. It is then that NSA employee’s job to make a decision about the need to pursue a further investigation or not.  How much pressure would there be to approve the tapping of that phone line? How much resistance would there be over concerns of a potential terrorist’s civil liberties?

That’s a deck stacked pretty heavily in favor of aggressive, secret investigation. If you were working for the NSA, would you want to wake up one morning to reports of a terrorist attack that you allowed to happen because you felt a bit squeamish one Tuesday afternoon?

So, with that said, join me for a little bar-napkin math:

According to a June 7, 2013, Associated Press report, former NSA employee William Binney estimates that “the agency collects three billion phone calls each day.” Now presume that only one in ten million of those gets kicked out by the computers for closer scrutiny. That would mean that 300 people are being singled out for surveillance every day. Now multiply our speculative number of 300 by the number of days in a year. That would mean the NSA is listening in on the conversations of 109,500 people per annum, or over a million in a decade. For sure, they will net some terrorists, thank god, but in that bundle will also be close to a million teachers, fry-cooks, home-health aides, obstetricians, hipsters and retirees — being recorded and surveilled by their government.

Trying to get the NSA to publicly release the number of Americans “who have had the communications collected or reviewed under the authorities granted by section 702 of the FISA Amendment Act (FAA),” two Senators on the Intelligence Committee, Ron Wyden (D-Oregon) and Mark Udall (D-Colorado), made that specific request in a letter directed to the leadership of the National Security Agency. Their letter bounced around inside the agency for a while, finally reaching the desk of the NSA Inspector General, who in a pique of truly Orwellian arrogance responded that to release the requested information “would violate the privacy of U.S. persons.”

Growl at the NSA under your breath as you will, and play with the numbers as you see fit to come up with your own estimate, but one thing is certain: if American citizens discovered surveillance were that pervasive, the administration and the NSA would be in the middle of a public relations nightmare of truly epic proportions.

Someone might even call for a Church-Committee-style investigation.

 

This debate hits home with the Surly Bartender for very specific reasons that I’ve been hesitant to write for fear that you’d think me a black-helicopter-fearing loony. But I may have already been caught up in this whole NSA fandango. Maybe you’ve experienced something similar. Who knows? If so, drop by the bar and I’ll have you fitted for your own stylish tin-foil hat. Mine is working wonders.

But rather more seriously, twice over the past year, I’ve been on the phone with my mom back in New York City and our calls have been recorded. On both occasions we were chatting away about entirely innocuous stuff when the line went dead. Knowing that shit happens all the time in Guatemala, I thought little of it and called her back. But when my 71-year-old mom, who spends her time doing good works, visiting with the grandkids and designing jewelry, was finally back on the line, she described the strangest thing. On my end, the call just ended, but on her end rather than the line cutting out, she heard a complete replay of our conversation.

The second time it happened, she just said, “That weird thing with the recording happened again,” and we both made a joke by saying hello to the spooks on the other end of the line.

Long before Edward Snowden got lost in an airport, I’ve wondered about what happened on those calls. What could it mean? It WAS a recording, which I know because it was RECORDED. Yet, for the life of me, I can’t imagine how it would benefit a phone company to store their customers’ conversations. So, either my mother was lying, which makes little sense as she is a perfectly wonderful mommy, or somebody else made the decision to push the red button. But why me? Or, for that matter, why her?

Before going further, I guess I should take into account the possibility that it was the Guatemalan intelligence services doing the surveillance, in which case I should be polite and say, “Hola, mis amigos. ¿Me escuchan bien?  Bueno!”

But for the purposes of this argument, let’s assume it was Uncle Sam on the line. In that case, two potentialities arise, neither one of them good.

It could be that no one was listening at all. Maybe it was just a glitch in the pro forma recording of all phone calls that the President assures us is not happening in the first place. Maybe no humans were involved past the decision to harvest all information technologically possible and to save it for a rainy day.

But I’ll give the President the benefit of the doubt. He says they are only collecting mail covers, er . . . I mean metadata. In that case, a decision to begin recording would need to be actively made by an NSA “collector,” which, creepily, is what they are actually called. Who knows, maybe to them I looked like a reasonable target for further investigation. Maybe my mom did. I can even easily build a case where that makes sense.

Consider this: In 2006 I traveled to India. While there I met and became friends with a Muslim man named Abed, though he went by the nickname Pappu. I’ve written about him at length previously in La Cuadra, (Volume VI, Issue 2, March / April 2012, if anyone wants to have a look). Pappu lives in the predominantly Hindu city of Varanasi, which has been the scene of four major terrorist attacks since my time there.

When my mother traveled to India that year to visit me, she also became friends with Pappu and his family, so much so that she made an agreement to pay for the schooling of his children. Since that day, every month, my family sends cash to Pappu through Western Union for tuition payments. Those payments, my mother reports, have become much harder to navigate in the last year and she often has to resend the money several times before it reaches the other end. But still, regular as clockwork, she heads out to transfer a meaningful chunk of cash to Pappu at the beginning of the month. Also, once a week, equally as regular as clockwork, Pappu calls my folks in New York to apprise them of his life and let us know how well the kids are doing in school.

For the record, they are all now in university and doing remarkably well.

But how might this look to NSA computers sucking up all the metadata on phone calls and financial transfers between India and the United States? Might a cousin of a friend of a neighbor of Pappu’s be an actual terrorist? Did any facial recognition software from a closed circuit camera pick out my friend’s face in the aftermath of the March 2006 bombing of the train station in Varanasi where he works? Who knows? But if a computer told you that either my mother or I were potential targets because of those factors, wouldn’t you snoop around a bit more?

It’s not unreasonable, if security is the only concern, that such a decision might be made. But here are two crucial problems with that logic. First, however important, security is not the only concern in an open society. Second, given access to the entire universe of metadata, such a story could be woven for millions upon millions of innocent people, provided they have communications with friends and business partners around the world.

So, in the end, should I be thankful that the guardians of my safety are ever watchful, or should I be offended at this infringement of my liberty? At this point, I honestly don’t know. But my guts tell me that until folks see the true dimensions of the new security state — one that can so easily reach into the lives of innocent citizens, record their conversations, send that information to other law enforcement agencies and store it for years — the debate just won’t make much sense.

Which, we should remember, is exactly what the intelligence agencies and the administration want. I hope we can at least agree that gaining that greater understanding of what is actually happening is more important than answering the entirely facile question: Where’s Snowden?

Let me know what you think.

But now, it’s high time for a drink.

 

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About the Author

Michael Tallon, Editor-in-Chief, head writer and delivery boy, of La Cuadra Magazine, expatriated from the States 11 years ago. After spending a year in Antigua gasbagging about wanting to start an English Language magazine, he hit the road and wandered about South America, India and Nepal before finding himself sipping tea in Darjeeling and realizing that maybe it was time to head home and pick up the career path. That ill-fated adventure in New York lasted about 6 weeks before he headed back to Antigua, Guatemala, where John Rexer had actually started the magazine in his absence.

After a few months, Mike took over the magazine and has been going slowly broke since. On that note, Mike would like to invite advertisers, readers and potential patrons to send him free money.
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