NSA

How Many Attacks Would Have Happened Without the NSA's Phone Record Database? Possibly Zero.

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Senate Appropriations Committee

At a Senate Appropriations Committee hearing yesterday, Sen. Patrick Leahy (D-Vt.) asked Gen. Keith Alexander, director of the National Security Agency, if "the intelligence community [has] kept track of how many times phone records obtained through Section 215 of the PATRIOT Act were critical to the discovery and disruption of terrorist threats." Alexander chose to answer a different question, saying the phone records "have helped prevent…dozens of terrorist events…both here and abroad." Saying the NSA's massive database of phone records was helpful is not the same as saying it was necessary, especially since the government could follow up on specific leads by applying for orders seeking relevant information, rather than using blanket orders to collect records for millions of innocent people just in case they might be useful one day. Later in the hearing, Alexander retreated further from any claim that the phone record database has been "critical" (as Leahy put it) in disrupting terrorism:

When I say "dozens," what I'm talking about here is that these authorities [Section 215 of the PATRIOT Act and Section 702 of the Foreign Intelligence Surveillance Act, which authorizes the NSA to monitor online activity, with the official targets limited to foreigners in other countries] complement each other in helping us identify different terrorist actions and helping disrupt them. They complement each other. So what you're asking me is to state unequivocally that A or B contributed solely to that. The reality is, they work together.

In other words, Alexander is not willing to say that the NSA's enormous phone record grab has been crucial in preventing a single terrorist attack, or whether less sweeping, investigation-specific data demands would have been equally effective.

But why bother being more selective? Writing in the Chicago Tribune, two leading libertarian legal scholars, the Cato Institute's Roger Pilon and NYU law professor Richard Epstein, argue that the NSA's data dragnet—which apparently includes location information as well as the numbers people call, the numbers from which they receive calls, the timing of the calls, and the lengths of the conversations—represents only a "trivial" intrusion on privacy:

The government does not know—as some have charged—whether you've called your psychiatrist, lawyer or lover. The names linked to the phone numbers are not available to the government before a court grants a warrant on proof of probable cause, just as the Fourth Amendment requires. 

Even assuming that procedure is actually followed (and how would we know if it isn't?), the names and addresses associated with phone numbers are generally a matter of public record. Interactions among numbers, which are included in the records that the NSA obtains through Section 215 orders, are not. But once you have the latter, it is easy enough to figure out what they signify about someone's heretofore private affairs. No warrant is required.

Pilon and Epstein concede there is potential for abuse of this information but say that is not enough to justify tighter controls on government access to it:

Yes, government officials might conceivably misuse some of the trillions of bits of metadata they examine using sophisticated algorithms. But one abuse is no pattern of abuses. And even one abuse is not likely to happen given the safeguards in place. The cumulative weight of the evidence attests to the soundness of the program. The critics would be more credible if they could identify a pattern of government abuses.

I don't know about you, but until last week I did not even know the NSA kept a comprehensive database of our phone records. Isn't it possible that abuses of this heretofore secret program have been kept under wraps as well? As people who try to challenge government snooping in court have discovered, it is pretty hard to prove that you have been subjected to clandestine surveillance. And since when do we insist on evidence that a threat to liberty has already materialized before supporting safeguards aimed at preventing it?

You can watch yesterday's hearing here.

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  1. “have helped prevent…dozens of terrorist events…both here and abroad real and imagined.”

    1. I’m not awfully worried about what ills analyizing metadata portends. It seems like fairly innocuous stuff. I worry about what it signifies after several years of mission creep warps the mandate the NSA feels it enjoys if Americans remain aloof about this program. Perhaps we can revive the flagging war on drugs by labeling local distributors as footsoldiers for the Mexican mafiosos. I’m sure having a list of contacts with whom dealers regularly correspond would be nifty information for LEOs.

      Not to mention what I suspect will be the next leak: NSA targeting domestic groups using keywords like “patriot” and “tea party.”

      1. Not just mission creep from the NSA. How long until other agencies realize what a great resource this trove of data could be? What could the FBI, IRS, HHS, etc. do with this information? Why not pass a law requiring that this database be used as part of the background check process for those applying for a concealed weapons permit?

  2. Richard Epstein? Seriously? Damn, that makes me sad.

    1. Yeah, I was saying earlier this is par for Pilon but sucks coming from Epstein. But then I was also listening to him on EconTalk yesterday while I was the gym talking about how he thinks Heller was wrongly decided because militia. Everyone just sucks.

      1. Epstein has always been pretty iffy. He’s probably the strongest example of that slur about how Hayekians ‘can’t be trusted.’ He’s done a lot of great work, but he’ll also say things that seriously conflict with basic libertarian values and arguments.

        1. Yeah. He’s done some very good work but has never been perfect.

    2. He’s a utilitarian, ain’t he? So you have no excuse for being surprised when he says something contrary to libertarian principles.

      1. Epstein’s is the utilitarianism of the comfortable classes, who, despite some handwringing and tut-tutting and when tensions rise and lines are drawn, always seem to find themselves on the side of the uniforms.

  3. government officials might conceivably misuse some of the trillions of bits of metadata they examine using sophisticated algorithms. But one abuse is no pattern of abuses. And even one abuse is not likely to happen given the safeguards in place. The cumulative weight of the evidence attests to the soundness of the program. The critics would be more credible if they could identify a pattern of government abuses.

    So let me make sure I’ve got this right.

    There is the possibility of abuse, but it’s really not possible due to oversight.

    Also, in order to be taken seriously, we have to show a pattern of abuse. However, we can’t be given access to look for abuses because it’s all classified. Therefore, there is no abuse.

    The sickening thing is I can see the idiots nodding their head in agreement thinking “that makes sense”

    1. ^This^

    2. There is the possibility of abuse, but it’s really not possible due to oversight.

      Also, in order to be taken seriously, we have to show a pattern of abuse.

      As soon as the feds show a pattern of oversight

  4. Yes, government officials might conceivably misuse some of the trillions of bits of metadata they examine using sophisticated algorithms. But one abuse is no pattern of abuses.

    Bull. Fucking. Shit. Abuse is inevitable (it’s human nature), even in a closely monitored program. Which this is not.

    Are Pilon and Epstein fucking retarded? How stupid do you have to be to trust these people?

    1. Cato has plummeted in my estimation over the last year. I think I’m going to start sending those donations to IJ instead.

    2. I wasn’t’ aware that a “pattern of abuses” was required to constitute abuse.

      I only raped you once, what is your issue?

      1. It’s unthinkable that a bunch of unaccountable bureaucrats and spies might abuse personal data on millions of people, right? I mean, what am I, a paranoid loon? I better stop this crazy talk before Pilon and Epstein call me a nut or something.

        1. But everyone in Washington Epstein knows is a really nice guy and would never do that.

        2. I see what you did there, Epi. Apples and oranges. Go back to the conversation and answer my question.

          Your argument is faulty.

    3. I don’t know what has got into Epstein. My only guess is that he has been such a darling of the Right in Washington for so long that he has started to believe that abuses won’t happen because all of his friends in Washington are such nice people and constantly tell him how awesome he is.

    4. The work for Cato. Cato works for the corporations, not for liberty.

  5. It doesn’t matter. 4th Amendment; just read it.
    You can claim that throwing the entire population in jail will prevent a bunch of murders, too, but it doesn’t matter; 4th Amendment.

    1. It’s not too much to ask to insist that the government at least follow it’s own rules, is it?

  6. No, fuck you, obey the Constitution!

    1. Look, that document is like a hundred years old and written on sheep skin or something gross like that. Srsly, those guys in powdered wigs couldn’t have foreseen the internet.

  7. Go fuck yourself General. You can either articulate the benefits of this program or you can’t. Stop insulting the country’s intelligence with weasel words like “contributed”. The Army really does do a great job in ensuring that no one with any personal integrity ever makes general officer. This guy is not stupid. And he certainly would be able to make a good case if one existed. Thirty plus years in the noble profession of arms to end up as a hired liar before Congress. That is just sad.

  8. How many terrorist attacks would be prevented if government organisations stopped encouraging and supporting such attacks for the purpose of preventing them?

    1. And how many more would be prevented if the USA brought all its troops, ships, planes, drones and spies home, and furloughed most of them?

      1. And how many would have been prevented if the USG simply folded, peacefully…. not to mention all the atrocities that would have been prevented around the globe.

  9. “In other words, Alexander is not willing to say that the NSA’s enormous phone record grab has been crucial in preventing a single terrorist attack, or whether less sweeping, investigation-specific data demands would have been equally effective.”

    The answer of course is none, this data simply does not contain enough information to stop an attack, the best it could do is help identify a potential terrorist to watch and of course once you have identified that terrorist you no longer need the dragnet data because you can get specific targeted data.

    The one and only plausibly legitimate use for this kind of mass data sweep is to identify those who interact with burner phones (prepaid phones used once or at most a handful of times then thrown away), of course tracking the burner phones is impossible and you could never prove who had the damn thing in their possession to begin with but what you could do is sweep through the call data and identify numbers which made calls to or recieved calls from a prepaid cell phone which was only ever used a small number of times in a short period and then never again and single those individuals out for further investigation.

    Every other possible use of this data is illegitimate and probably illegal targeting of innocent civilians.

    1. ^^THIS^^ The data only makes sense if you know who is talking and the context of it. And if you know that, you just go get a wiretap.

      This goes to the heart of the entire problem of applying the intelligence collection model to terrorism.

      The idea is that good intelligence will tell us who a terrorist is before he can strike. But the intelligence data almost never makes any sense until after you know the guy is a terrorist. Take the 9-11 plotters. Nothing they did indicated they were actual terrorists until they actually hijacked the planes. Everything before that could have had an innocent explanation and only made sense after you knew the end.

      The only only way that the intelligence is meaningful and of any value is if it identifies a terrorist. But at the point it identifies a terrorist, it ceases to be intelligence and is a criminal case.

      It is very difficult to imagine the IC ever actually foiling a terror plot outside of just getting incredibly lucky and catching someone laying out their plans in detail on a phone or email, which seems very unlikely.

  10. We should all just buy a tiger-repelling rock.

  11. Now, see, this sort of criticism of Epstein (& Pilon in this instance) makes sense. Not calling them morons, because they’re not, but rather looking at a pattern and saying, gee, maybe CATO doesn’t deserve such support, etc. I’d’ve actually guessed more likely Pilon to have taken that position than Epstein. But anyway, I’m disappointed.

    OTOH, I always suspected NSA had & kept such info, and although I did not know it, any more than Jacob did, I’m a little bothered that he didn’t put in a little aside about suspicions, because I didn’t think Jacob was naive.

    1. Corrected below: I’d’ve guessed Epstein more likely than Pilon to take that position.

  12. Now, see, this sort of criticism of Epstein (& Pilon in this instance) makes sense. Not calling them morons, because they’re not, but rather looking at a pattern and saying, gee, maybe CATO doesn’t deserve such support, etc. I’d’ve actually guessed less likely Pilon to have taken that position than Epstein. But anyway, I’m disappointed.

    OTOH, I always suspected NSA had & kept such info, and although I did not know it, any more than Jacob did, I’m a little bothered that he didn’t put in a little aside about suspicions, because I didn’t think Jacob was naive.

  13. “Abroad”. Nice wiggle word. As though we give up our privacy and freedom to prevent some ill-defined, speculative events “abroad.” What a bunch of SHIT. I’m sorry, I’m out of euphemisms this week.

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