Sunday, July 28, 2013

Surveillance: Why There is No Escape from Particularized Suspicion

From the very start, George Orwell's Thought Police seemed far-fetched to me.  The obvious question is, just how large is the organization?  How can there possibly be an organization large enough to monitor the entire population at all times, to detect what they are doing even when off-screen, and even to study them in detail, like a specimen under a microscope.  Such a level of scrutiny, to say nothing of apparent infallibility, is an extremely labor-intense undertaking.  Just how many people would it take?

Orwell starts off by limiting it somewhat. Such intensive surveillance is practiced on only Party members, making up about 15% of the population.  The common people (Proles) are much more loosely controlled. Informants circulate among them, rooting out obvious trouble makes, but otherwise they are allowed to live as they wish.  Even Party members can hope to escape the scrutiny of the Thought Police by wandering into Prole parts of town.  Still, just how many people would it take to semi-continuously monitor 15% of the population? Well, we can start with some basics.  Although Winston Smith, the protagonist, lives alone, most people live in families.  Let us assume your typical household have to have four members.  Assuming one agent monitoring each family (we will assume that each family either lives in a one-room apartment or that the agent is looking at all their telescreens at the same time), that would require one-fourth of 15% of the population to do the monitoring, or about 3.75% of the population, or about one person out of 27.  Since the parents are at work and the children in school much of the time (we will assume no stay-at-home housewives), we can assume only one shift is needed to monitor families at home.  On the other hand, someone will have to monitor people at work and school.  Granted, much of this will be time spent in common areas, where only one monitor may be needed for a large group of people.  Still, Winston seems to be alone in his cubicle much of his time at work.  Granted, one spy might watch more than one cubicle at a time.  One spy might even watch more than one apartment at a time.  But there will be a loss of efficiency.  And presumably there is a hierarchy in the Thought Police, with higher-ups deciding what to do with any bad reports coming in from the telescreens.  And presumably the grunts watching the screens are not the same as the agents who sneak into Winston's apartment when he is not there, read his diary, and put the speck back on his page so he will not be aware of it.

On the other hand, maybe the Thought Police don't watch everyone.  It is made clear that children are taught to inform against their parents.  Winston's ex-wife would not hesitate to inform against her husband.  So maybe they only monitor people if they do not have an informant in the household (or, of course, if the informant sees something suspicious).  Still, someone will have to process all the reports coming in from all those informants, and once the Thought Police see something suspicious, it will take a team of at least several members to monitor the suspected dissident in the sort of detail that Orwell describes.

But all of this simply goes to an important point.  Even in a society as totalitarian as 1984, there will have to be some level of particularized suspicion to trigger the level of surveillance Orwell describes.  This is simply inevitable given manpower limitations.  It is my calculation that in order to maintain the level of surveillance Orwell describes, it would be necessary to have at least one member of the Thought Police for ever 27 citizens.  This is a completely unrealistic ratio.  In the free and democratic U.S., cities over 250,000 population average 2.5 police per 1,000 population, or one for every 400 people.  Smaller communities typically have fewer. World ratios are here, ranging from Brunei, with 1,076 police per 100,000 people (or one per 92 people) to Mali with 48 police per 100,000 population, or less than one for every 2000 people.*  Secret police are normally an elite unit, smaller than the regular police.  Thus the KGB had one agent per 5,830 people and the Gestapo had one agent per 2,000 people.  The East German Stasi, the finest-toothed secret police of all, had one agent per 166 people.  In short, the police-population ratio needed to carry off Orwell's level of scrutiny simply is not achievable.

Three possible objections present themselves.  First, one might say, why does it have to be so labor intensive?  Why not have computers do the screening?  Certainly, I have little doubt that computers have now or will have soon, capacity to record every phone call, e-mail, and so forth.  Doubtless the time will soon come if it has not already when it will be technically possible to bug every person's home and record every conversation taking place.   But how does one process such an enormous mass of data?  The NSA has apparently looked for patterns in the meta-data or for suspicious words in international phone calls.  Maybe in 1984, computers could screen images for suspicious words or body language and alert human agents if they saw anything.  Indeed, maybe some day computers will get so good at such things that in-depth surveillance will no longer be labor intensive.  But we are nowhere near that point yet and neither (so far as we can tell) was 1984.  As of today, computers have proven very poor at detecting grounds for particularized suspicion and have produced mostly false alarms and subjected innocent people to senseless scrutiny.  Granted, in a totalitarian country this may be a feature not a bug.  Random harassment of the innocent based on groundless suspicion should, after all, be quite effective in quelling dissent.  But having a lot of investigations of false leads also wastes time and manpower, which are limited resources, and raises the risk of missing the real dissidents.

This, in turn, raises the second point.  Why bother with thorough surveillance and particularized suspicion at all?  Why not just seize anyone who seems even remotely suspicious and skip the time-consuming and labor-intensive process of investigating whether the suspicions had any sort of validity.  A sufficiently widespread random terror should be quite enough to frighten any potential dissenters into passivity.  This is essentially what Stalin did during the Great Purges.  Mere rumor or a tip for a personal rival were enough to have anyone carted off to Siberia and never seen again.  The answer, I suppose, is that the Stalins of the world are fortunately not very common.  Furthermore, the Great Purges proved to be unsustainable. The system was threatening to break down under the sheer scale of the arrests.  Even basically random arrests proved to be more labor intensive than the secret police had the resources for.  In short, episodes like the Great Purges are best seen as an aberration.  Most dictatorships ultimately want to get their real opponents and, although they may tolerate or even welcome a certain amount of collateral damage, but complete randomness is going too far.

Finally, the source of most arrests during the great purges -- a denunciation -- raises the final and most important objection.  What about the use of informants?  The statistics are fascinating.  Stasi had one agent per 166 citizens.  Including their regular informants, however, the ratio was closer to one out of 66 citizens.  And county occasional informants, the ratio was closer to one out of every six to seven citizens.  In other words, at any dinner party of 10 to 12 people, it was reasonable to assume that one or two might inform the police if anyone made a subversive remark.  One can well imagine the effect this would have in stifling free speech.  Yet going by informants, East Germany was not the finest-tuned surveillance system.  In Cuba under the Castros, fully 8.4 million people out of a population of 11.2 million are members of the Committees in Defense of the Revolution.  There is a committee on each block, which keeps files on each person on the block.  In other words, approximately 80% of the population are informants of some kind!  It should also be noted that the use of informants, besides being low-tech, is also very old, being mentioned even in ancient times.  It can be immensely intrusive.  In 17th Century Spain, the woman who cooked with olive oil might be denounced to the Inquisition as a possible secret Jew or Muslim for not using lard.

In short, there is no doubt that modern techniques make more intensive surveillance possible than ever before.  But intensive surveillance is so labor intensive that the number of people who can be subjected to it is necessarily limited.  The most effective form of extensive surveillance (i.e., surveillance on a large number of people) is the old-fashioned one, surveillance from the bottom up through the use of informants.

There is a fascinating contrast between Orwell's version of surveillance and Tolkien's.  Tolkien's account of surveillance is extremely vague as to Sauron's capacity for surveillance, much less  how it was done.  Orwell, by contrast, describes the Thought Police' techniques in detail.  On the other hand, Sauron's agents (the orcs) are well characterized and act like one might well imagine real secret police might act.  The Thought Police, on the other hand, never have any characterization at all.  They have no human weaknesses of fallibility.  They are simply assumed to be omniscient, and that is all.  I have long yearned to read a version of 1984 written from the perspective of the Thought Police letting us see now they maintain such levels of surveillance -- and how, as is inevitably the case -- they make mistakes.

In my next post, I will get to The Lives of Others and the rule of law.

*The Vatican is an extreme outlier, with 15,000 police per 100,000 people, or one for every 6 2/3 person.  But the Vatican is not by any measure a normal country.

Surveillance from the Perspective of Fiction

This post makes the interesting comment that the real analogy to the present NSA surveillance is not .  1984, but Lord of the Rings.  Not Big Brother and the infallible Thought Police, but the immensely powerful but ultimately fallible Eye of Sauron.  Certainly Tolkein offers and important psychological insight in his novel -- Sauron, despite his immense knowledge and power, is not infallible. He makes mistakes, most notably, assuming that because he wants to use the Ring to take over the world, anyone else who gets the Ring will also want to take over the world.  That some people might see taking over the world as inherently illegitimate and seek the destroy the ring so that no one can use it never crosses his mind.  It is a powerful metaphor. But Sauron is useless in any more detailed analysis for one simple and obvious reason -- we have no idea what his surveillance capacities are.  We know he has a Seeing Stone that can be used to see for some distance, and to communicate with anyone else who has a Stone.  Indeed, we know that he used the Seeing Stone to capture Saruman and Denethor.  Other than that, we really don't know whether the Eye of Sauron is literal or metaphoric.  Does actually look around in all directions and physically see everything that transpires in Middle Earth, or is the Eye a metaphor for his general sources of information, most of which come from spies.  Either interpretation is plausible.

1984, by contrast, is very direct and literal in the surveillance capacity shown.  Everywhere, in every room and on the outside of every building is a two-way viewing screen, and even in the absence of such screens there may be microphones.  Children inform against their parents.  Secret agents of the Thought Police are everywhere, and no one knows until too late who they are.  No one ever knows when they are or are not being watched, which naturally inhibits any show of dissent.  Winston and Julia think they have rented a secret hideaway, only to find that the proprietor is an agent of the Thought Police.  But at the end, their powers are shown to be much greater and more fearsome that Winston ever suspected.  He has a small area of his room outside the view of the telescreen, where he hunches, writing his unorthodox thoughts in a diary.  He leaves a speck of dust on the page to see if it has been tampered with.  Later he learns that the thought police had been studying him all this time, like a specimen under a microscope, had known all the things he thought he was hiding, and had even carefully replaced the dust speck on the pages of his diary.  In short, they really do seem to be omniscient.

There is one other more realistic (though not wholly realistic)* work on the actual surveillance practices of what was probably the most thoroughgoing surveillance state ever to exist in the real world -- The Lives of Others, describing surveillance as practiced by the Stasi (secret police) in East Germany.  I want to use 1984 and (later) The Lives of Others to address three issues on surveillance -- the technical limits on it, the legal limits on it, and the appropriateness of such laws.  More to follow.

*It is highly realistic in the extent of surveillance going on.  It is unrealistic in showing an agent responsible for sending reports secretly send false information and allow his target to engage in dissident activities in safety.  In fact, all the watchers were also being watched and would never be able to get away with such a thing.

Sunday, July 14, 2013

Kevin Drum on NSA Surveillance

Kevin Drum of Mother Jones magazine has done an excellent job of covering the NSA surveillance story.  I have a collection of his posts here.  Omitted are any about Snowdon personally because I do not want to allow that to become a distraction from the real issue.

Kevin Drum series:

The story first breaks
What NSA may be doing w phone records (two useful links)
First report of internet surveillance
WSJ says NSA is also tracking credit cards
Silly aside on the graphics
Why the leak?
Internet program less direct access than a "lock box"
This is consistent with Obama's overall record
What about tracking mail?
Internet sureveillance less than originally reported
Scope of NSA surveillance worldwide
What is on the other slides?
Compared to Baltimore phone booths
Opinion poll
PRISM may be a routine piece of military software
There were 22 briefings. That tells us nothing
Another opinion poll
The usual line -- Obama hasn't abused but what abt his successor
Conflicting rumors from unreliable sources
Polls, by party
Evidence of limited scope
Is which calls to tap a matter of agent discretion?
WaPo history of NSA surveillance programs
Internet metadata
More claims surveillance was limited
Snowdon interview
Breaking the law vs. bad law
Texas and drones
NSA chief gives his side of story to Congress
Plot broken up in Germany, 2006
More opinion polls
Minimization procedures
All tech companies are basically spy companies
More on minimization
Britain does it too
NSA denies tracking movement of cell phone users
NSA claims it has stopped bulk domestic email collection
Evidence NSA is not revealing all
Gov't also tracking letter metadata  (Link.  Tracked mail of former spokesman of the Earth Liberation Front)
Two gigantic NSA revelations:  It may be tracking e-mails and log-ins in real time and recording all telephone conversations.  The link  New power point slides released Greenwald speech Earlier evidence gov't was recording phone calls
Hint about what is going on: NSA is allowed to collect data, but still need authorization to use it.  link  Also expresses concern about the secrecy of the rulings.
Drum suggests about what I suggest

One Final Comment on Surveillance

So, if I could basically accept gathering all meta-data in one place provided it was not under the control of the NSA or anyone else who could look at it, provided that looking at it required a court order and some degree of particularized suspicion, provided that adequate minimization procedures were employed to ensure that innocent data was not retained, and finally, provided that warrants were narrow enough to keep agents on a reasonably tight leash, why am I still leery about passing a law to allow it?

Basically, because the NSA's past behavior does not exactly inspire confidence.  It has regularly either broken the law or stretched it so far as to make it meaningless and, when caught, declared that its actions were necessary for our security and gotten Congress to expand its powers.  Once legislation expanding its powers was passed, it then either broke the new law or stretched it so far as to make it meaningless.  Before I take another turn in this cycle, I want some sort of assurance that it will be the last one.  And I don't want the new law simply to expand the NSA's powers to allow it to do all the questionable things it has been doing anyhow.  I want the basic structure out in the open, even if, of course, the operational details must be kept secret.  If having a collection of all meta-data is necessary, I want it authorized by law, not done by an absurd interpretation of an existing statute.  I want it stored somewhere that neither the NSA nor any other law enforcement agency can access without a proper court order.  I want a date after which the information must be destroyed.  I want the court order held to standards that are not so vague as to be meaningless.

More than that, if we are going to grant the NSA this expansion in this power, I want it counterbalanced with some real restraints.  Two have been suggested.  The Supreme Court has never ruled on it, but several federal circuits, and the FISA court, have held that the Fourth Amendment does not apply to foreign intelligence.  This means that there is no constitutional restrain on the executive branch's power to engage in foreign intelligence surveillance; the only constraints are the ones in the FISA statute.  It is a normal and routine feature of our legal system that the courts make legally binding interpretations of statutes.  Often a short and sparse statute may be little more than a skeleton, with the courts fleshing out these bare bones.  (One of the reasons so many statutes run to hundreds of pages these days is to limit the courts' latitude).  Court interpretation of statutes are on the public record, and if Congress does not like how a court has interpreted a statute, it may amend it.  FISA is a notable exception.  The FISA court works in secrecy.  Only two cases under FISA have ever been appealed.  The first one held that the FISA court may not build a "wall" between intelligence gathering and prosecution, and may not forbid law enforcement from participating in FISA surveillance.  The other case rules that (1) communications companies have standing to appeal orders they consider unjust; (2) the Fourth Amendment does not apply to foreign intelligence; and (3) targeting a US person outside the United States did not require particularity to be reasonable.  (What this last part means is somewhat vague in the absence of facts).  Many people have suggested that, although operational details and routine matters should be kept secret, any legally significant interpretations of FISA by the lower FISA court should be published.  It has also been suggested that, since obviously the target of surveillance cannot be warned and allowed to appeal, communications companies should be given that right, expressly.  I favor both of these, along with more narrowing and particularity in what a FISA wiretap can do.

In short, before I listen to people saying we just have to expand the NSA's powers to do what they have already been doing, I want some assurance that it will finally stop here, and some institutional teeth build in.

Surveillance and Minimization Procedures

One thing that gets talked about a lot during the debate on surveillance are minimization procedures.  What are minimization procedures.  This is not something I know anything about, except what comes from court cases.  Roughly speaking, though, even a completely legitimate wiretap will collect innocent information.  Minimization procedures come in two kinds:  Stopping the collection of data once it becomes clear that it is innocent, and getting rid of the innocent material that is invariable swept in.

In re Sealed Case No. 02-001, the only FISA opinion currently on public record, explains both types:
[M]inimization procedures are designed to protect, as far as reasonable, against the acquisition, retention, and dissemination of nonpublic information which is not foreign intelligence information. If the data is not foreign intelligence information as defined by the statute, the procedures are to ensure that the government does not use the information to identify the target or third party, unless such identification is necessary to properly understand or assess the foreign intelligence information that is collected. Id. § 1801(h)(2). By minimizing acquisition, Congress envisioned that, for example, “where a switchboard line is tapped but only one person in the organization is the target, the interception should probably be discontinued where the target is not a party” to the communication. H. REP. at 55-56. By minimizing retention, Congress intended that “information acquired, which is not necessary for obtaining[,] producing, or disseminating foreign intelligence information, be destroyed where feasible.” H. REP. at 56.
Zweibon v. Mitchell is a fine example of why minimization procedures are needed.  Mitchell in this case refers to Richard Nixon's Attorney General.  The case involved the Jewish Defense League, an organization widely known as a right wing terrorist group.  It appears to have begun as something between a neighborhood watch and a vigilante organization* in the late 1960's, when black crime rates were surging and white flight was in full force.  Upper middle class Jews moved to the suburbs, working class and Orthodox Jews, who could not afford to move, were frequent victims of black crime.  It moved beyond mere defense to outright racism.  In the 1970's, it became a champion of Soviet Jews denied visas to move to Israel.**  Much of its activity was lawful -- anti-Soviet protests, demonstrations, and carrying signs.  But it also engaged in numerous acts of terrorism against Soviet diplomatic facilities, airlines, and even the Bolshoi Ballet.  Their activities jeopardized Nixon's policies of detente with the Soviet Union.  The Soviets did not always make the distinction between lawful picketing and unlawful acts of violence; they just wanted the whole thing to stop.  Clearly, then, since the Jewish Defense League was practicing terrorism that affected our foreign relations, wiretapping some of its activities was appropriate.  But at the time it has approximately 15,000 members, most of whom were not involved with terrorism and conducted a great deal of lawful business.  What was called for, then were strict minimization procedures.  While it might be acceptable at first to listen in to its conversations in general, the government should be required to determine which connections were likely to lead to actual terrorism and which were not, and to stop listening in to the innocent ones and discard all such information.  The temptation, since even the League's lawful activities were a foreign policy headache, was to listen in to everything.

This should also provide some guidance on sifting through metadata.  Since sifting through metadata more or less by definition involves sweeping in a great deal of innocent information, everything but specific patterns of metadata involving actual terrorists (or spies) should be discarded and destroyed.

*A distinction not always as clear as one might wish.
**Just to make clear, at the time Zionists wishing to move to Israel were a distinct minority among Soviet Jews.  Most were highly assimilated and had no desire to leave the only home they had.  Nonetheless, Soviet mistreatment of Jews who did wish to move to Israel was inexcusable.

Sunday, July 7, 2013

A Short Detour on Republicans and Obamacare

As Obamacare comes closer and closer to coming on line, Republicans are getting desperate how to stop it. I suppose I should give them credit for at least one thing.  They are no longer claiming that it will be the end of all liberty or turn us into a Communist dictatorship or lead to T-4 or the mass murder of senior.  Claiming such thing about something remote and far-off is one thing.  Claiming it about something due to come online in about six months is another.  It is too easily falsifiable to be even remotely plausible as a claim.  Instead, Republicans are starting to make legitimate complaints about problems that might actually occur.  They worry that employers will refuse to give people full time work to avoid paying for their insurance, or that premiums will rise, especially for the young and the healthy (with no mention of the subsidies that will help people afford those premiums).

Still, I do note that their objections look mighty shifty.  Until the individual mandate was upheld by the Supreme Court, it was the absolute worst feature of the law.  Individual mandate was the end of all liberty; it allowed government to dictate anything and everything people could do; government could even force people to eat broccoli.  Law supporters responded that the individual mandate was necessary to prevent people from postponing buying health insurance until they were sick and sending the system into a death spiral.  Well, now that the individual mandate has been upheld, it appears that the greatest flaw in the system is that it is not sufficiently enforced, that with such mild penalties, some people might decide not to buy insurance until they are sick and send the system into a death spiral.  And, of course, they are doing their best to keep people from buying insurance and thereby accelerate the process.  And they plan to run on repealing Obamacare in 2014.

Still and all, I see an obvious problem there.  So far, it is hard to generate much enthusiasm about the program because very few people have benefited from it.  But what happens when people do?  Certainly, it appears that not as many people will sign up for insurance as we had hoped, but some will -- probably not a trivial number.  And suddenly in 2014 running on a promise to repeal Obamacare will mean running on a promise to take people's health insurance away.  That really looks like a losing proposition to me.

Or consider another matter.  The statute provided for subsidies for people buying healthcare on state exchanges, but not on federal exchanges.  The assumption was that all states would set up exchanges.  In fact, some 28 states refused, so federal exchanges were substituted.  The IRS implemented regulations allowing subsidies for people buying insurance on exchanges.  Now various groups have sued to block the regulation.  Granted, the regulation is legally and constitutionally suspect, but the problem is (theoretically) easy to solve simply by slightly modifying the originals statute to allow subsidies on either federal or state exchanges.  So the question is not simply whether the regulation is statutorily or constitutionally sound, but also whether it wiser on either a political or a policy basis to block the regulation, rather than to correct the error.  Defenders of the suit argue that it will protect employers from having to pay fines for not insuring employees if their employees are not eligible for the subsidy.  Ignored is the more important effect -- that it will "protect" people who would otherwise want to buy insurance on the exchanges from getting subsidies to do so.  So, there will be people wanting insurance, but unable to afford it and facing fines for not having it  who will resent the law.  And by narrowing the pool of people buying insurance, it will encourage a death spiral.  So if your goal is to kill Obamacare, it makes perfect sense from a policy standpoint.

But consider the politics of it.  Yes, if people buying insurance on federal exchanges are blocked from subsidies before January 1, 2014, they will be presented with promises of insurance they cannot afford and fines for not having it and be justifiably resentful.  Arguments that Republicans are blocking their subsidies, or that people in a neighboring state with its own exchange are getting them will probably not go very far.  Politically, it will work to Republicans' advantage.  But the chances of that happening in the next since months  at any higher a level than federal district court are not high.  And the chances of the Supreme Court making it the national law of the land within that time are essentially nil.  Which means that if the lawsuit succeeds, it will occur after people have already started getting subsidies to buy insurance and will suddenly have them cut off.  The political pressure to fix the problem will be rapid and intense.  And if it becomes clear that Republicans consider it a proud achievement to have cut off those subsidies and will move heaven and earth to keep anyone from getting them back -- well, I have to imagine they will pay a price at the polls.

NSA Meta-Data: What I Consider Reasonable

We know much less about what the NSA is doing than what the Postal Service is doing.  Nonetheless, I believe that reasoning by analogy from what is acceptable for the postal service is a good way to decide what would be acceptable for the NSA.

We know that the NSA is collecting meta-data on all phone calls made in the country.  What we do not know is what it is doing with all that information.  The general guess is that it is doing one of two things.  One possibility is that it is tracing calls of known and suspected terrorists to find their contacts and patterns of calls.  For instance, if a terrorist attempts to thwart surveillance by changing phones, the new phone can be found by looking for a new number that has the same contacts and patterns of calls as the old one.  It may trace terrorist phone numbers to find their contacts and calling patterns, and to see who needs further investigation.  The other possibility is that the NSA is doing general data mining on this immense database, looking for possible patterns of terrorist activity.  My position is that I consider the former use acceptable if appropriate safeguards are in place, and the latter use unacceptable.  And I definitely do not want it to be within the NSA's unbridled discretion to decide what what it does with this immense database.

Why is overall data mining without particularized suspicion unacceptable to me?  Maybe the simplest answer is that the invasion of privacy just feels creepy to me.  Defenders would argue that I am being unreasonable, that my identity is not known to the people tracking my meta-data, that my meta-data is too small and insignificant to attract attention, and that nothing so abstract and impersonal could in any way be an invasion of privacy.  I suppose my answer comes from Bruce Schneier.  For data mining to be an effective tool, three conditions must be met.  There must be a well-defined profile, reasonable frequency of attacks, and a low cost of false positives.  Hence data mining works well for credit card fraud.  Credit card fraud has a definable profile -- purchase of an expensive or easily fenced item, or a sudden change in the owner's spending habits.  It is common -- out of 900 million credit cards in circulation in the US, about 1% are typically stolen or used fraudulently in a year.  And the cost of a false alarm is no more than a phone call to verify that a purchase is genuine.  Terrorism is a different matter altogether.  It is by no means clear that there is a well-defined profile of a terrorist.  But, even assuming that there is such a profile, terrorists are rare.  Even a very low false alarm rate, false alarms will vastly outnumber real leads, to the point that frustrated law enforcement refers to them as "calls to Pizza Hut."  Schneier focuses on this mostly as a waste of law enforcement resources, but it is more than that.  It is an invasion of privacy for every innocent target investigated as a result of a false alarm.  Then there is also the frustration factor in looking for a needle in a haystack and not finding one.  The temptation will become great to sharpen a strand of hay and call it a needle.  Certainly there is some evidence that at least some agencies, lacking terrorists to surveill, have gone looking for someone -- anyone -- else to keep an eye on.  (Now if only someone could be caught conducting surveillance on the Tea Party!)

So, why is use of the entire national electronic communications database to track known and suspected terrorists acceptable to me?  If there is a known target, why not use more conventional means to follow that target.  Here I will have to plead lack of expertise and deference to the experts.  The basic point appears to be that electronic communications are much more mobile, extensive, and easy to change than when most of the rules for wiretapping were made.  People have more phones than in the past, and can switch numbers more quickly and easily.  The pre-paid or disposable phone has replaced the pay phone as the best source of anonymity.  And, of course, there are many forms of non-telephonic instant communication.  So I am prepared to believe that given the mobility and interchangeability of communications these days, finding a terrorist every trying to evade surveillance might require access to a very large database.  Maybe finding a terrorist's new phone by looking for a similar pattern really does call for extensive data mining.  Maybe there are other uses in tracking terrorists that I never thought of.

What safeguards would I consider necessary for me to be comfortable with the NSA collecting all our electronic meta data?  Probably something similar to what I would consider appropriate for the Postal Service.  I consider it reassuring that in the case of the mail, the agency collecting meta-data and the agencies using it are separate.  Even the minimal procedural barrier of having to make an application for information limits requests to cases of some sort of particularized suspicion.  If the NSA is going to collect all our meta data, then the agency storing the data and the one using it should be separate.  If the NSA is looking for something in the meta-data, it should require a court order and some sort of particularized suspicion.  The current pen register rule for tracing contacts with a particular number is "relevance to an ongoing investigation."  This is not a high standard.  My understanding that it is theoretically what the NSA is still held to in its use of meta data, but it has evaded even that narrow standard by simply arguing that all meta data is relevant to its search for terrorist (can't find link).  Clearly, then, something more specific is called for.  I am open to persuasion as to whether it should require "specific and articulable facts" or even "probably cause," but simply that it might yield something some time is not enough.  Regardless, once you authorize searching through such an immense database even with particularized suspicion, a lot of innocent data is going to be swept in.  We therefore need stringent minimization procedures, that is rules forbidding follow-up on leads that turn out to be innocent, and destruction of information gathered that turns out to be innocent.  And finally, on the subject of data destruction, we need some sort of expiration date on the information gathered.  It may be that to properly trace a number requires information that dates back for a period of time, perhaps even years.  But there must be a point beyond which the trail goes cold and the usefulness of meta-data is limited.  No doubt there is always a faint possibility of some sort of use, but at some point it starts sounding like an excuse.  We need an expiration date on meta data collected.

I intend to follow up with a few posts on other surveillance topics besides meta data.

Saturday, July 6, 2013

NSA Spying and the Postal Service

I will not attempt to figure out what is going on with the NSA, and what they are or are not spying on.  What is known so far is that they are collecting all metadata on all phone calls in the US (and presumably the world).  They have a warrant to do so, so the collection does not technically break the law, although it stretches it well past its reasonable elasticity. What is not known is how extensive use the NSA makes of the metadata it has collected.  A warrant is required to listen in on domestic calls.  It is not clear, however, whether that means an individual warrant, or a "basket warrant" of a broader group, allowing the NSA discretion to decide which individual numbers fit within the "basket."  If the NSA inadvertently listens in on a domestic phone call, it must destroy the information, unless it reveals either a "threat of harm" or "criminal activity," which can be kept and passed on to the FBI.  Not known is whether the NSA is using this loophole to circumvent the usual warrant requirement by "accidentally" listening in on as many domestic phone calls as possible.  And the latest report is that the NSA is not just tracking all telephone meta-date, but even recording (though not listening to) all telephone calls.  We don't know whether the NSA is collecting metadata on domestic e-mails.  We believe it is not tapping in on everything that goes through the internet, but has developed a system that makes it easier to turn over information when required by court order.  And not it appears that the Postal Service is keeping meta-data on all mail being sent, ready to be turned over to law enforcement.

Our information is too sketchy to do more than speculate about what is going on.  I do not know enough about electronic surveillance to speculate intelligently.  I will therefore consider what would be acceptable surveillance and what would not.  A good place to start, and move onward by analogy, is the recent revelation that the Postal Service is keeping cover information on all mail sent in the US.

In some ways, the Postal Service story is less alarming than the rest.  In that case, the Postal Service collected the meta-data on all letters, but only turns them over to law enforcement upon request.  In other words, the agency collecting meta-data on letters is not the same as the one using it.  Neither the NSA or any other law enforcement agency is given all the information to play with;* to obtain information law enforcement must have some sort of particularized suspicion.  The Times story distinguishes between two uses of mail tracking by law enforcement.  In the older version, dating back for a hundred years, law enforcement can ask the postal service to record the covers of all mail sent or received by a particular target.  The newer program, adopted with the anthrax letters following 9-11, the Postal Service has routinely kept meta-data on all mail sent, and can provide meta-data on past letters sent upon request of law enforcement.  One form of surveillance is prospective; the other retrospective.  One could be used to follow and break up a plot as it progresses; the other is for solving crimes already committed.

But in another way, the Postal Service story is alarming.  The threshold for turning over information is not high.  No court order is required; law enforcement need only submit an application, which is almost never refused.  (Opening mail requires a warrant, of course).  And, unlike the NSA program which remains shadowy, the Postal Service program has had definite cases of abuse, and disturbing episodes.  Sheriff Joe Arpaio (who else?) has been accused of using the program to trace mail on a political opponent.  And the Times story begins with the account of Leslie James Pickering, a former spokesman for the Earth Liberation Front (ELF).  ELF, it should be noted, is an eco-terrorist organization that engages in acts of sabotage, although it has not killed anyone so far, so surveillance of active members suspected of engaging in sabotage is legitimate.  And although Pickering limited himself to propaganda on behalf of ELF and did not engage in actual violent acts, perhaps one could argue for surveillance on him on the grounds that he might lead law enforcement to violent members.  But Pickering does not appear to have been actively involved with ELF for nearly a decade.

My ultimate conclusion is that I would be open to reforming, rather than abolishing, storage of meta-data on mail.  Reform would follow three points:

First, the postal service must be limited to collecting meta-data and may not use the data itself.  (So far as we know, this has been done).

Second, meta-data should be destroyed after a reasonable period of time.  I do not know what a reasonable period of time is, but there must be some time after which the trail is too cold to be worth following.  Data after this period of time should be destroyed.

Third and finally, a court order should be required.  The act of submitting an application, even in the absence of scrutiny, is enough to limit use of mail meta-data to some sort of particularized suspicion, but the story makes clear that this is not safeguard enough, and that more is required.

Alas, I fear that evidence that the FBI may have improperly surveilled a former member of the ELF will not be enough to spur any serious reconsideration of the program.  Improper surveillance of Operation Rescue, now, or the militia movement would lead to some action!  Let's hope some such surveillance turns up.

*So far as we know.  It is entirely possible that the NSA is also vacuuming up the Postal Services' cover information as well.