NSA

5 Alarming Things We Should Have Already Known About the NSA, Surveillance, and Privacy Before Ed Snowden

A few reminders about the general state of surveillance and privacy in the U.S.A.

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When former National Security Agency contractor Edward Snowden blew the whistle on NSA spying, the story had bracing and wonderful effects. But alert Americans should have already known at least five reasons to be alarmed at the agency and its activities, and the general state of surveillance and privacy in the U.S.A.

1. Whistleblowers have warned us about an out-of-control NSA before.

Before Snowden became a household name, there was Thomas Drake, indicted in 2010 under the Espionage Act after he said publicly that an NSA data collection program might be being used illegally to gather data on Americans. (Drake pled guilty to one small charge. The bigger ones were ultimately dropped.)

And don't forget William Binney and J. Kirk Wiebe. Each had their homes raided by the FBI in 2007, when they were suspected of being the sources of a 2005 NSA data-collection scandal broken by the New York Times. That scandal circled around the NSA's Bush-era warrantless wiretapping program.

These guys are in a position to know more than the average reporter about NSA capabilities and practice, so it's worth noting that Binney told the Daily Caller after Snowden's leaks that the NSA may have its mitts on more than just "metadata" or pen register stuff. They likely have audio as well:

The former FBI agent, Tim Clemente, says they can get access to the content of any audio, any phone call. He says that there are no digital communications that are safe or secure. So that means that they were tapping into the databases that NSA has. For the recorded audio, and for the textual materials like emails and phone…..Now I don't think they're recording all of it; there are about 3 billion phone calls made within the USA every day. And then around the world, there are something like 10 billion a day. But, while they may not record anywhere near all of that, what they do is take their target list, which is somewhere on the order of 500,000 to a million people. They look through these phone numbers and they target those and that's what they record.

The three whistleblowers' lawyer, Jesselyn Radack, explained to USA Today that the NSA doesn't take kindly to people who complain about illegal activity through official channels. "The inspector general was the one who gave their names to the Justice Department for criminal prosecution under the Espionage Act," she said. "And they were all targets of a federal criminal investigation, and Tom [Drake] ended up being prosecuted—and it was for blowing the whistle."

Even in the U.S. Senate, legislators such as Russ Feingold (D-Wisc.) and Ron Wyden (D-Ore.) long ago were warning that the government was secretly using its Patriot Act Section 215 authority to grab private information about Americans from private businesses. In 2006, then-Sen. Joe Biden, currently vice president, expressed alarm about the Bush-era NSA. Biden's concern did not just involve technical legality, which the 2008 FISA amendments supposedly took care of. It involved the core Fourth Amendment questions raised by such broad and intrusive data collection, even if the dragnet is only amassing patterns and not direct audio wiretaps.

2. Telecoms were already known to be cooperating with the government against their users.

There is a reason President Barack Obama was caught in a controversy in 2008 when he switched from opposing "telecom immunity" to supporting it: because we already knew the telecoms had been cooperating with warrantless NSA electronic data-grabs. The purpose of the immunity legislation was to be sure they couldn't be sued over it.

Credit: Whitehouse / Flickr

And remember how Chris Soghoian (currently with the American Civil Liberties Union) discovered in 2009 that both Verizon and Yahoo! were afraid that their customers would learn the extent to which they shared information with law enforcement. Yahoo! admitted that publicizing such facts would likely "shame" the company and "shock" its customers. As I quoted Soghoian in a 2010 American Conservative article, telecom and Internet providers "all have special departments, many open 24 hours per day, whose staff do nothing but respond to legal requests. Their entire purpose is to facilitate the disclosure of their customers' records to law enforcement and intelligence agencies."

3. By letter of the law, it's likely illegal for anyone to whistleblow or even report on the NSA's activities.

Marc A. Thiessen of the American Enterprise Institute has admitted his own complicity in a criminal enterprise by writing an op-ed in the Washington Post declaring that the Post, and anyone else reporting on Snowden's revelations, or anything about NSA spying is, by his read of federal law, a criminal.

Read 18 U.S.C. 798 and weep, patriotic Americans:

Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes…any classified information—….

(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

(3) concerning the communication intelligence activities of the United States or any foreign government;…Shall be fined under this title or imprisoned not more than ten years, or both.

If it makes you feel any better, later in the law it gives you a bye if you spill to a committee of Congress "upon lawful demand." Not that they are likely to demand it. Famous Pentagon Papers whistleblower Daniel Ellsberg, who supports Snowden, nonetheless agrees his whistleblowing violated that statute.

4. Massive NSA data hoovering was already well-understood to be ongoing by those familiar with the agency.

Readers of Reason knew the big picture all along: the NSA was involved in grabbing great amounts of domestic electronic communication, likely in violation of even the very loose standards in place after the FISA amendments of 2008. Jacob Sullum noted here in April 2009 that the NSA "has been abusing its new statutory powers, collecting purely domestic communications along with the international phone calls and email messages covered by the FISA amendments."

Even before revelations about Prism this month, NSA chronicler James Bamford reported at length in his 2009 book Shadow Factory that the NSA has its own room at a huge AT&T facility in San Francisco through which enormous amounts of domestic electronic communication were funneled, where the agency was essentially grabbing everything. Similar systems were at place in other AT&T hubs, likely grabbing other carrier's traffic as well.

As Bamford wrote in Shadow Factory, the NSA already had the goal to "create a database of every call ever made" in the country. Unable "to show probable cause, or even a reasonable suspicion…the NSA was on an expensive fishing expedition….People became NSA targets simply because they happened to call a target." NSA then began tossing lots of these domestic numbers as "unsolicited leads" to the FBI so they could directly tap domestic calls. As Bamford reports, this wasted a great deal of FBI time, to who knows what detrimental effect.

Bamford concluded that as early as 2008, anyone paying attention knew that "the idea of communications privacy in the United States has literally become a joke." Pranksters in the Billboard Liberation Front altered an AT&T billboard to read: "AT&T works in more places, like NSA HEADQUARTERS."

5. The Fourth Amendment has already been effectively gutted when it comes not only to national security, but to domestic law enforcement.

Credit: Library of Congress

As Julian Sanchez of the Cato Institute ably explains in a Bloomberg op-ed, when the Supreme Court limited Fourth Amendment protections for "business records," it set us on a slippery slope that ended with pretty much any information you willingly give to a third party, like a phone company, becoming fair game for the government to grab. And as Ed Krayewski detailed here at Reason last week, the exigencies of fighting the Drug War have led to even more gutting of the protection against unreasonable searches and seizures.

These reminders of what we already should have known about government surveillance is not meant to denigrate the importance of Snowden's revelations. Whether the public reaction (and media reaction) to the revelations should satisfy privacy mavens is a more depressing story.

Those who care about privacy issues should contemplate what was already in the public record and consider how fragile "public awareness" can be, how knowledge available to the alert can all-too-quickly fade from the body of information that forms most Americans' view of the world. One of the challenges now is to ensure that what Snowden has told (or reminded) us about the NSA, and the world of surveillance in which it's enmeshed, doesn't fade from Americans' too short memories.

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61 responses to “5 Alarming Things We Should Have Already Known About the NSA, Surveillance, and Privacy Before Ed Snowden

  1. Now, BTW, there were 50, count ’em 50, terrorist plots foiled!
    http://www.sfgate.com/news/pol…..606684.php

    1. Interesting. Were people killed or prosecuted in this foiling? Exactly what did they prevent?

      1. Exactly what did they prevent?

        Can’t tell you……classified.

        FIFTY though…..FIFTY11111111!

        1. Can common folk use this defense?

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      2. “Exactly what did they prevent?”

        Well, some really bad stuff! And some nasty stuff! And some other stuff!
        And we needed to spy on all of you to do that!
        I promise!

    2. What a magically round number that is

      1. Plots come in fifties, just like celebrity deaths come in threes. I could tell you how I know that, but it’s classified. National security, you know.

    3. 50?! Man, am I appeased.

    4. That’s a suspicously round number.

      1. The number was actually 57, but it was thought that no one would believe it.

        1. Actually, 49.99 would be more acceptable than 50. I’m not sure how you could say that 99/100ths of a plot were foiled — maybe if, say, a shot was fired at a victim but it missed.

          In any case, they need to add something like this:
          “But wait, there’s more! If you believe us now, we’ll throw in a second MAJOR plot foiled for the same price! All you’ll pay is shipping and handling. Call now. Operators are standing by. Actually, don’t bother calling. We’re already listening, so you can just speak your order out loud and our operators will take care of the rest.”

    5. Am I supposed to believe that the Pontificator-in-Chief wouldn’t have claimed personal credit for all of these successes in the run-up to the election?

  2. I’m sure plenty of people have seen the signals leading up to this. The problem is only a small minority seem to care for reasons other than political gain.

  3. So it would seem that the NSA and its whistleblowers were all violating the law. So basically no one runs Bartertown.

    1. FoE just wants to be Auntie Entity.

      1. Makes sense, since you and Warty are MasterBlaster.

        1. I thought I was the gyropilot. I get so confused with all those Australian accents.

          Remember, Hugh: no matter where you go, there you are.

      2. Look, man, we don’t need another hero.

          1. But how the world turns. One day, cock of the walk. Next, a feather duster.

  4. Sure, we’ve seen these things in the past. But, as I’ve said before, any time I’d talk about the secret room at AT&T or massive internet monitoring, I was met with derision and “tin foil hat” insults.

    It’s not paranoia if there really is a conspiracy.

    1. “Just because you’re paranoid doesn’t mean they aren’t after you.”

      1. Yeah, that too.

        A friend of mine was commenting about those electronic plates potentially being used to track your car everywhere at all times. And this is someone who is usually very dismissive of those types of theories.

        I hope he’s not just an isolated incident and more of America will open their eyes before it’s too late.

    2. Paranoia /?p?r??n???/ (adjective: paranoid /?p?r?n??d/) is a thought process believed to be heavily influenced by anxiety or fear, often to the point of irrationality and delusion. Paranoid thinking typically includes persecutory beliefs, or beliefs of conspiracy concerning a perceived threat towards oneself. (e.g. “Everyone is out to get me.”)

      That defines our government officials to a T. They think its own citizens are out to get them and will throw all rights to the wind to keep their power.

  5. Damn you people and your 5 things on 5 separate pages!

    1. Reason always needs to provide an option to show the whole article on one page, as do many other sites such as New Scientist.

      It’s not complex technically, just needs management to realize that making things easier for their users makes very good business sense…

      1. LS—if you hit the “print” option at bottom, it gives you a one-page version.

      2. Someone needs to add that to Reasonable: Multi-page into single page.

          1. Our messiah has arrived!

  6. The William Binney and J. Kirk Wiebe case was not just about the NYT leak. It was more about a billion dollar boondoggle of a program.

    Binney worked for the NSA for almost forty years, where he and analyst Wiebe, who worked at NSA in excess of 30 years, developed a revolutionary information processing system called ThinThread that they believe could have detected and prevented the 9/11 terrorist attacks. But NSA officials ignored ThinThread in favor of Trailblazer ? a much more expensive program that not only ended in total failure, but cost taxpayers billions of dollars.

    http://www.whistleblower.org/p…..kirk-wiebe

    The point can never be made enough. This shit doesn’t work. It doesn’t make us any safer. Civil Libertarians get wrapped around the axle defending principles. And that is all well and good. But they need to not cede the argument of effectiveness and safety. When people say “but this is the price to pay to make us safer” people need to call bullshit. It doesn’t make us safer.

    1. At this point I’ve just assumed everything the government does is in the least efficient manner. Gotta justify them massive budgets and countless agencies somehow.

    2. “But there was always respect. I always knew where the line was drawn. And you just stepped over it, buddy-boy. You’ve insulted me. And you’ve insulted this company with that bastard creation of yours. I had a guaranteed military sale with ED-209. Renovation program. Spare parts for 25 years. Who cares if it worked or not?”

    3. But then you just get “You just want to do NOTHING?? We can’t do NOTHING”.

    4. It’s a mistake to say “This shit doesn’t work.” The mistake comes from the expectation that the “shit” is supposed to make us safer. Perfect rot of course. It’s nothing of the sort. The “shit” exists to propagate bureaucrats, enrich contractors, and increase observation and control over the rest of us. We’re afflicted with the bastard offspring of Leviathan and Panopticon.

      1. Yeah. I don’t even believe the thin thread people. I don’t think for a moment that thin thread effectively sorted through the emails to get the right ones without having any idea what the right ones were.

        The bottom line is that time and time again we see terrorists in this country who did everything but write to the White House announcing their plan to do something. Yet, the NSA misses every single one of them. So I am doubtful they get any useful information from this. If they did, there wouldn’t be so many terrorists who are so obsequious about their intentions yet manage to avoid detection.

        1. Major Hassan, for example. He had every sign of being a terrorist except for a flashing neon one worn on his head like the Pope’s hat.

        2. The bottom line is that time and time again we see terrorists in this country who did everything but write to the White House announcing their plan to do something.

          And yet there are still assholes out there saying we NEED this invasion of privacy to protect teh childrenz.

          Granted, even if it caught every asshole that was ever even thinking of doing a crime ever I’d still be against it.

  7. But NSA officials ignored ThinThread in favor of Trailblazer ? a much more expensive program that not only ended in total failure, but cost taxpayers billions of dollars.

    But NSA officials ignored ThinThread in favor of Trailblazer ? a much more expensive program that not only ended in total failure, but cost taxpayers billions of dollars.

    CLASSIFIED

    SEE…….the system works.

  8. http://prism-break.org/

    Do it. It’s easy. Just tart firefox up with fancy add-ons.

    I don’t think it can stop the NSA, but you can damn well stop Google (and Apple, and Microsoft, and all the rest). They should pay a price with the consumer.

  9. Governments had systems for sophisticated electronic data grabbing for years prior to 9/11. Remember the cold war SIGINT operation called “ECHELON”?

    http://en.wikipedia.org/wiki/ECHELON

    Worth a read for a bit of history. These things never disappear, just metastasize. Growth of governmental snooping has followed the well known trajectory of bureaucratic expansion.

    1. Yes, Echelon was discussed in an earlier pre-edit version of this Piece. “Jam Echelon Day” was the 90s version of “everyone talk like a terrorist,” that video floating around. That was a satellite transmission grab though, not based on wires, as I understand it, from the days when more signals were going through the air.

    2. But ECHELON had a target. They were trying to intercept Soviet communications. They knew what they were looking for.

      That is a totally different problem than “here is all of the emails that were sent in the US yesterday, please tell me if any of them reveal a terror plot”.

      1. Or the sexual preferences of Republican donors.

        1. That is the thing. The data set is highly useful if you have names and specific information that you are looking for. It is fucking useless to stop terror plots. But it is damn handy if you are looking for blackmail material.

          1. Not true John.

            It would also be useful for blackmailing people into terrorism, who you could then arrest, thus foiling terrorism and keeping us safe.

            1. There has been major scandals recently in town of government types (one was a privacy expert!) and LE using data to stalk hawt co-workers.

              I expect the NSA and similar organs do the same thing.

    3. ECHELON was a SIGINT (Signals Intelligence) program that at least has been used to collect real actual intelligence on things like Soviet and Chinese satellite and radio communications, as well as some technical intel on radar capabilities of potential adversaries (Soviets, Chinese, and pretty much anyone else we’ve gone to war with over the last 30 years or more).

      How else do you think we knew so much about Iraq’s air defense systems and how to defeat them during the first gulf war?

      1. Interesting point about all these wars we’ve been fighting. The Top Men believe we can win with our superior information and technology and we start a fight and come roaring in, blast away for a while and then hang around until driven away by rice farmers in lampshade hats and black pajamas or unemployed camel drivers.

      2. How else do you think we knew so much about Iraq’s air defense systems and how to defeat them during the first gulf war?

        Honestly? I thought we sold them their shit.

  10. NSA then began tossing lots of these domestic numbers as “unsolicited leads” to the FBI so they could directly tap domestic calls.

    So it sounds like this is basically saying that the NSA lied to the FBI about where these “unsolicited leads” came from. No wonder they don’t want to share any details about the alleged 50 terrorist plots that they claim to have foiled. They lied to the FBI, and if the FBI knew it was a lie, then that means they likely lied to the judge that gave them the warrant for the wiretap.

  11. You missed #6

  12. #1 reason we should have been alarmed and suspicious: It’s a government program.

  13. Both Cheney and Big O have publicly told me to trust them.

    That’s all I need and that’s all you dope smoking anarchist nutters should need either.

    Trust them – they will protect you.

  14. Time to download the They Might Be Giants ringtone from 2006: “Call Connected Thru the NSA”
    http://tmbw.net/wiki/Download:…..ru_The_NSA

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  16. But, while they may not record anywhere near http://www.schuheladen.com all of that, what they do is take their target list, which is somewhere on the order of 500,000 to a million people. They look through these phone numbers and they target those and that’s what they record.

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