Privacy and Government Surveillance: Are We Willing to Sacrifice Our Rights?

[Greg Bernhardt]

Late Wednesday, The Guardian newspaper reported on a top-secret program ordering Verizon to share daily records of all its customers' phone calls with the US government. The FBI asked a secret US court to grant the order in April, and it covers all of Verizon's phone records through July. (You can read the actual court order here.) One source tells The Washington Post, however, that the Verizon data collection has actually been going on since 2006 , and more phone companies may be involved.

http://abcnews.go.com/ABC_Univision...ying-explained/story?id=19347440#.UbIE0PnCbmE

What's everyone's take on this? I agree, it shouldn't be so shocking given the patriot act and other moves by the government, but are we really ok with this? It's a slippery slope and rarely can we get back our privacy. Are we ok with having our communications profiled for the rest of our lives?

 

[Office_Shredder]

If they just made a request in April and then everyone found out and got outraged I would be pretty OK with the situation (not that they made such a blanket request, but at least the system of checks and balances has a chance to work). If this has been happening since 2006 and we're only just finding out now then I have to question how we can possibly have a true system of checks and balances when such things can be kept secret for almost a decade.

You might be thinking something like "hey I'm not doing anything wrong, no big deal". But here's a hypothetical to consider: What if it came out that Senator Nelson's crucial and painfully extracted 60th vote to end cloture on Obamacare came about because someone found in those phone records an incriminating phone call between the Senator, and e.g. an escort service? Maybe this is ridiculously extreme but if they can keep secret a program where they spy on every American for 7 years, we really have no idea what that information was used for

EDIT TO ADD: Just to clarify, this hypothetical doesn't require a conspiracy, just some guy in the FBI who's a die-hard Democrat. If cops are willing to breach their professional responsibility just to check out a picture on a driver's license then an FBI agent doing the same thing for political reasons doesn't seem terribly farfetched

 

[nsaspook]

Most people will just say "I don't care" until they are in the dragnet and have their personal information used as a hammer on the kneecap.

http://www.washingtonpost.com/blogs...-unknowingly-legalized-prism-in-2007/?hpid=z3

Civil liberties groups warned that the PAA’s vague requirements and lack of oversight would give the government a green light to seek indiscriminate access to the private communications of Americans. They predicted that the government would claim that they needed unfettered access to domestic communications to be sure they had gotten all relevant information about suspected terrorists.

 

[turbo]

EDIT TO ADD: Just to clarify, this hypothetical doesn't require a conspiracy, just some guy in the FBI who's a die-hard Democrat. If cops are willing to breach their professional responsibility just to check out a picture on a driver's license then an FBI agent doing the same thing for political reasons doesn't seem terribly farfetched

So only Democrats can be nailed with such charges of abuse? Is there anyone here that doesn't think that there are Republicans that want to challenge the rights of citizens to act freely? Far too black-and-white for me...

 

[BobG]

You might be thinking something like "hey I'm not doing anything wrong, no big deal". But here's a hypothetical to consider: ...

Reword to: "You might be thinking something like "Hey, I'm not doing anything wrong and I know every single person I ever talk to on the phone isn't doing anything wrong, so no big deal".

 

[encorp]

I still have not seen anywhere (that I can trust) any details of exactly what they were collecting, how, why, and what they were doing with it.

 

[BobG]

They're not collecting anyone's conversations - just using who called who. Most likely reason would be to map out networks that flag which people they ought to investigate more closely.

 

[Office_Shredder]

So only Democrats can be nailed with such charges of abuse? Is there anyone here that doesn't think that there are Republicans that want to challenge the rights of citizens to act freely? Far too black-and-white for me...

Ummmm no, I was just giving a hypothetical example of how an individual with access to this data could cause a pretty large swing in national events. Obamacare passing with exactly 60 votes was just the largest, closest bill I could think of (and if it only got 59 votes the example would have been about a Republican keeping it from passing)

 

[edward]

It appears to be a new and improved version of what many of us questioned years ago.

There is no such thing as true privacy if a person uses any form of mass communication.

Verizon Wireless is assuring customers that their privacy won’t be comprised after it became the first mobile phone company to publicly admit that it was selling some of its customers’ personal data to third parties.

BOLD MINE

http://www.khou.com/news/Verizon-Wireless-publicly-admits-selling-customers-personal-data--133043148.html

 

[mheslep]

[

...

Verizon Wireless is assuring customers that their privacy won’t be comprised after it became the first mobile phone company to publicly admit that it was selling some of its customers’ personal data to third parties.

True or not, it seems to me to be irrelevant where the government is concerned. The fourth amendment limits what the government may or may not do. The government shall not "seize", shall not violate, "and no Warrants shall issue, but upon probable cause." There is no escape clause in the fine print of the amendment that says except when or where private entities already do this or that. And finding probable cause seems completely incompatible with any kind of blanket seizure as has been done here.

 

[Office_Shredder]

This actually leads to an interesting discussion point. If instead of acquiring by seizure, the government just bought all the data at the going rate, would that be ok?

 

[encorp]

I managed to find a time line for this, if anyone is interested.

https://www.eff.org/nsa-spying/timeline

 

[nsaspook]

They're not collecting anyone's conversations - just using who called who. Most likely reason would be to map out networks that flag which people they ought to investigate more closely.

That's true in the phone metadata case but "PRISM" is designed to capture the contents of the entire digital data stream.

http://www.washingtonpost.com/inves...0c0da8-cebf-11e2-8845-d970ccb04497_print.html

In a statement issue late Thursday, Director of National Intelligence James R. Clapper said “information collected under this program is among the most important and valuable foreign intelligence information we collect, and is used to protect our nation from a wide variety of threats. The unauthorized disclosure of information about this important and entirely legal program is reprehensible and risks important protections for the security of Americans.”

Clapper added that there were numerous inaccuracies in reports about PRISM by The Post and the Guardian newspaper, but he did not specify any.

 

[Office_Shredder]

I find this line particularly hilarious

Wyden repeatedly asked the NSA to estimate the number of Americans whose communications had been incidentally collected, and the agency’s director, Lt. Gen. Keith B. Alexander, insisted there was no way to find out. Eventually Inspector General I. Charles McCullough III wrote Wyden a letter stating that it would violate the privacy of Americans in NSA data banks to try to estimate their number

They're making sure that your right to be spied on in privacy is carefully guarded

 

[edward]

This actually leads to an interesting discussion point. If instead of acquiring by seizure, the government just bought all the data at the going rate, would that be ok?

Local Police are buying your information from cell phone companies at the going rate.

The law enforcement officials say they do it as a matter of public safety, as in the case when someone is missing. The cell phone companies, meanwhile, are making a tidy profit providing the data

Stephen B. Wicker, Cornell University professor of electrical and computer engineering, says it it just points up what he calls our “obsolete” federal data privacy laws. He conducts research on wireless information networks, and focuses on networking technology, law, sociology, and how regulation can affect privacy and speech rights. He is also the author of “Cellular Convergence and the Death of Privacy,” a book to be published by Oxford University Press at the end of 2012.

Bold Mine

http://www.consumeraffairs.com/news04/2012/04/cell-providers-selling-your-data-to-police.html

 

[Dotini]

http://www.motherjones.com/politics...tronic-frontier-foundation-fisa-court-opinion

The FISA court, which oversees and signs off on the surveillance, has issued an opinion to the government that the surveillance is unconstitutional. But the Justice department is keeping the opinion secret. Lawsuits are pending.

"...when the government hides court opinions describing unconstitutional government action, America's national security is harmed: not by disclosure of our intelligence capabilities, but through the erosion of our commitment to the rule of law."

Obviously, if the government or the people want or need to do something unconstitutional, the remedy is simple - amend the Constitution!

Respectfully submitted,
Steve

 

[Office_Shredder]

If they declare a program unconstitutional and the government says "eff it, we're going ahead anyway", what happens? The court becomes pointless, or do they have some leverage to actually stop it (since they aren't allowed to tell anyone apparently)

 

[nsaspook]

If they declare a program unconstitutional and the government says "eff it, we're going ahead anyway", what happens? The court becomes pointless, or do they have some leverage to actually stop it (since they aren't allowed to tell anyone apparently)

You leak it to the press and let the citizens of the country decide if they still want the leaders of that government in office.

 

[JesseC]

The whistleblower went public:

http://www.guardian.co.uk/world/2013/jun/09/edward-snowden-nsa-whistleblower-surveillance

He appears sincere and therefore IMO incredibly brave.

 

[Stephen Tashi]

The fourth amendment limits what the government may or may not do. The government shall not "seize", shall not violate, "and no Warrants shall issue, but upon probable cause."

I'm not a lawyer, but it looks like the fourth admendment isn't a useful tool for preventing massiive data collection. The man-in-the-street interpretation of it isn't correct. For example U.S. vs Miller says that your records at the bank aren't protected by the 4th amendment. Perhaps your records at the phone company are the phone company's records not your "personal papers or effects". (The case often cited as the origin of the "right of pivacy", Griswold v Connecticut dealt with the use of contraceptives. I don't think that case was decided on the basis of the fourth amendment.)

The man-in-the-street also thinks that there are constitutional protections against wiretaps on telephones without warrants. I don't know if there are and I'd be interested to hear from any legal expert about the matter. What happened subsequent to Olmstead vs US? ) (Edit: I found this http://en.wikipedia.org/wiki/Katz_v._United_States)

In the first place, court decisons about wiretaps may merely uphold laws that require warrants for phone taps. That wouldn't mean that a contradictory law would be unconsititutional. If that's the case then protection from wiretaps without warrants isn't due to the constitution. It's only due to current law.

In the second place, who is protected by laws against wiretaps? Is it phone companies or individuals? Is it the phone company who may require the warrant? Is a warrant required if the phone company doesn't demand it?

 

[nsaspook]

The whistleblower went public:

http://www.guardian.co.uk/world/2013/jun/09/edward-snowden-nsa-whistleblower-surveillance

He appears sincere and therefore IMO incredibly brave.

The guy has a death wish. I hope his reserve stash is safe if he wants any leverage later.

 

[DrDu]

I always thought that at NSA the real cracks on computer spionage are working. Now it turns out that they make the same ridiculously coloured low information content power point slides we are all familiar with from Dilbert comics.

 

[nsaspook]

I always thought that at NSA the real cracks on computer spionage are working. Now it turns out that they make the same ridiculously coloured low information content power point slides we are all familiar with from Dilbert comics.

I wondered who the audience was for those slides until Snowden said the site was run by contractors. Contractors means marketing and marketing means a suit with a MBA who needs to sell a service.

 

[joema]

...it looks like the fourth admendment isn't a useful tool for preventing massiive data collection...The man-in-the-street also thinks that there are constitutional protections against wiretaps on telephones without warrants...

This raises an important point which is rarely discussed: in the digital age, what legally constitutes a "wiretap", or "intercept", and who defines this? The US Supreme Court? A classified Presidential Directive? Or just agency-specific procedural guidelines?

In the old days a wiretap or intercept implied THE ACT of accessing the information flow. An authorizing warrant or other legal basis would be forward-looking from that point (IOW you can't intercept something in the past). It also equated intercept with human interpretation.

In recent decades, the NSA routinely and indiscriminately eavesdroped on millions of private US communications each day, apparently without any legal basis. This has been discussed in James Bamford's books and other places. The intercept method included antennas near microwave trunks, gigantic satellites with antennas 255 feet in diameter http://www.globalsecurity.org/space/systems/magnum.htm, and more recently direct optical taps on Internet Exchange Points: http://en.wikipedia.org/wiki/Room_641A

Apparently these actions are not defined as eavesdropping, collecting, or interception -- until a human being scrutinizes resultant data. Back in the day it would be like arguing a wiretap to a tape recorder wasn't eavesdropping until someone listened to it. E.g, DOD 5240 1-R says: "Information shall be considered as "collected" only when it has been received for use by an employee of a DoD intelligence component in the course of his official duties." http://www.fas.org/irp/doddir/dod/d5240_1_r.pdf

The problem is increasingly sophisticated computer AI can be leveraged against recorded metadata AND CONTENT without (apparently) this legally being a wiretap or intercept.

Imagine a supercomputer like IBM's Watson which sifts through oceans of pre-recorded, intercepted data, applying human-like evaluation. He's been taught by humans, but because he's not human this doesn't constitute a wiretap, intercept, or eavesdropping. Then one day he says "Dave, I've found something very important. You'll need a warrant before I show it to you. But I can provide all the corroborating basis for obtaining the warrant -- names, dates, locations, etc."

With that in hand the human gets a "particularized warrant" that's specific to the two parties in the communication. However -- because NSA has been recording (not just intercepting) everything they've done and said the past five years, the warrant enables retroactive scrutiny, not just forward-looking monitoring.

I'd be interested if anyone can authoritatively confirm how intercept/wiretap/collecting is legally defined regarding signals intelligence collection, and who the governing authority is.

 

[russ_watters]

The legal definition is supposed to come from the Supreme Court and (apparent) violation of that check by the executive branch is the main issue at hand.

 

[Stephen Tashi]

Apparently these actions are not defined as eavesdropping, collecting, or interception -- until a human being scrutinizes resultant data. Back in the day it would be like arguing a wiretap to a tape recorder wasn't eavesdropping until someone listened to it.

One technicality is that back in the day of analog phone traffic, the phone company (as far as I know) did not record most calls, so there was no company record of the content of a call. The wiretap required making a record that was not ordinarily made. Nowadays, its feasible for a phone company or other entities to record wireless transmissions or packets on networks. It would be a big impediment to testing hardware if such recordings were not allowed to contain data from the content of phone calls.

I don't think eavesdropping is illegal. Is it? Perhaps only installing special equipment to facilitate eavesdropping without a warrant is illegal.

 

[nsaspook]

I don't think eavesdropping is illegal. Is it? Perhaps only installing special equipment to facilitate eavesdropping without a warrant is illegal.

It's not illegal if it's within the NSA charter but the NSA is a military operation headed by a military officer so there is currently a pretend line between the requirements of 'Foreign' data 'Collection' (digital storage of all data) and the uses of that data for civilian law enforcement with a court order. If we really need a domestic COMINT agency it needs to be completely under civilian control from top to bottom but keeping it with the NSA provides great cover to hid the costs and scope of what's being done.

http://cryptome.org/nsa-ussid18-80.htm

 

[Stephen Tashi]

It's not illegal if it's within the NSA charter]

OK, but what I meant was it's not illegal for you or I to eavesdrop!

 

[Office_Shredder]

One technicality is that back in the day of analog phone traffic, the phone company (as far as I know) did not record most calls, so there was no company record of the content of a call. The wiretap required making a record that was not ordinarily made. Nowadays, its feasible for a phone company or other entities to record wireless transmissions or packets on networks. It would be a big impediment to testing hardware if such recordings were not allowed to contain data from the content of phone calls.

No, I don't think this is right. In fact federal law requires at least one party in the phone call be aware that the call is being recorded

http://en.wikipedia.org/wiki/Telephone_recording_laws#United_States

Which means the phone company as far as I am aware is NOT allowed to record your phone conversations by law

 

[nsaspook]

OK, but what I meant was it's not illegal for you or I to eavesdrop!

In most places eavesdropping phones, email or private digital conversations of a third party is illegal.

 

[Stephen Tashi]

In most places eavesdropping phones, email or private digital conversations of a third party is illegal.

I think not. If someone is working on a laptop in public, it isn't illegal for me to look at his screen. If someone is talking on a cell phone in public, it isn't illegal for me to listen to him or to for me to listen to both sides of the conversation if I can hear that well.

 

[Stephen Tashi]

No, I don't think this is right. In fact federal law requires at least one party in the phone call be aware that the call is being recorded

Do you interpret that to mean that an ISP cannot keep a record of packets transmitted over its networks because some of them might contain phone calls using voice-over-internet technology - even if the information in those packets is encrypted?

 

[joema]

...federal law requires at least one party in the phone call be aware that the call is being recorded...

Those are civilian laws; they do not apply to or are not followed by national intelligence agencies.

Both address and content is intercepted and recorded, including domestic communications. I believe the legal rationale is this itself doesn't constitute interception, only when a human must interpret it is that an interception requiring a warrant.

Former NSA official William Binney http://en.wikipedia.org/wiki/William_Binney_(U.S._intelligence_official ) estimated the NSA's new one million sq. ft Utah facility can hold 5 zettabytes (5E21 bytes, or 5,000,000 petabytes), which would only be needed for mass recording of content, not just address information. He further estimates the NSA's capture rate of all intercepted text on Earth and targeted audio is 20 terabytes per minute: http://www.democracynow.org/blog/20...ratus_whistleblower_william_binney_speaks_out

As demonstrated by IBM's Watson, the sophistication of lexical & semantic analysis is rapidly increasing. It's not a simple case of pattern matching a list of keywords. As increasingly human-like computerized reasoning is leveraged against recorded private communications, it ceases to be any consolation that a human hasn't yet examined it.

 

[Integral]

Ya don't need to record conversations, just knowing who is calling who can yield information.
Here is a modern analysis of colonial America based on knowing what organizations people belong to.
Similar things could be done with phone records.

http://kieranhealy.org/blog/archives/2013/06/09/using-metadata-to-find-paul-revere/

 

[Integral]

If they declare a program unconstitutional and the government says "eff it, we're going ahead anyway", what happens? The court becomes pointless, or do they have some leverage to actually stop it (since they aren't allowed to tell anyone apparently)

This has already happened, try Andrew Jackson. He totally ignored supreme court rulings and send the Army into move the Cherokees off of their land.