Comments on NSA Snooping

1. Anyone who desires or expects government agencies to relinquish the use of information-gathering should read David Brin’s The Transparent Society. Indeed, that book is a must-read for anyone who cares enough about the issue to pay attention to recent news reports.

2. I also claim that a must-read is my own article, The Constitution of Surveillance, written nine years ago.

3. I hope people are putting the NSA program in context with the Boston Marathon bombing. Here you go to all this effort to use Big Data to find terrorists, and when you are handed hard, actionable intelligence from the Russians you muff it.

4. I bet you will not find politicians putting the NSA program in context with Chinese cyber-spying, and explaining why ours is good and their is bad. I don’t think politicians are capable of doing the hair-splitting, so I think what they are left with is “What we do is good because we are good, and what they do is bad because they are bad.”

5. The issue is an uncomfortable one for libertarians, because I think that most people believe that the government is snooping in their interest. The majority may even be right about that. I myself have less of a problem with the snooping per se than with the secrecy of the programs. In my view, it is the secrecy, along with an absence of strong institutional checks, that is bound to lead to abuse. Also, see point (3).

6. The issue is an uncomfortable one for progressives, because their impulse is to treat the Obama Administration differently than they would have treated the Bush-Cheney Administration.

7. The issue is an uncomfortable one for conservatives, because it turns them into strange bedfellows. The civilization-barbarism axis clearly argues in favor of government snooping to defend citizens against barbarians, so conservatives feel inclined to betray libertarians and instead offer aid and comfort to President Obama.

8. How does snooping technology relate to the idea of competing private security agencies? Isn’t snooping technology going to be a vital tool for security agencies? What if a rogue private security agency conducts snooping in a way that customers of other agencies see as abusive? What if there are such significant economies of scale in snooping that it is a natural monopoly? David Friedman probably has thought about this.

Maybe the key point is (5). Government officials will argue that what they do must remain secret. They cherish secrecy. They claim that it is for our own good that we do not know what they do. I would say that such claims are often made and rarely true.

Obviously, a lot of other people have written about this. I recommend David Strom’s post (he is the St. Louis technology consultant, not the North Carolina libertarian) for its useful links.

17 thoughts on “Comments on NSA Snooping

  1. Ideological turing test quibble w.r.t #7

    The civ/barb folks have been arguing that if we dont let the barbarians in in the first place then we dont have to spy on ourselves. They dont seem remotely uncomfortable with issue, nor do they feel allied with Obama. But they do blame libertarians.

  2. It seems that the more fundamental issue is not being dealt with in those number topics.

    There seems to be consensus as to the benefits of governmental authority to access and acquire information.

    Like all power and authority vested in humans making up any kind of hierarchal order, governments in particular, that authority is subject to potential abuse.

    The Department Of Justice, which has the responsibility, power and discretion to determine the exercise of that authority under FISA has already shown its deficiencies and predilections to abuse its powers and discretion, particularly in the case of the warrants In Re: James Rosen. The administration of the executive department has displayed other abuses of discretion (loosely granted by legislation).

    The issue here is not one of privacy in a nation of Facebook, Twitter, Et Al.; the issue is one of **mitigation of abuse of discretion, authority and power.**It is the same issue that applies to Prosecutorial Discretion that has come to in fact our legal system.

    Quis custodiet ipsos custodes?

    It can be done; but it will require difficult legislative thought for which there appears to be very little time available.

  3. I have thought about some of it–see the relevant chapter of my _Future Imperfect_, webbed at http://www.daviddfriedman.com/Future_Imperfect/Chapter5.html.

    One interesting possibility is something along the lines of an open source pooling of surveillance information, where lots of private sources feed into a common pool to which everyone, or at least all contributors, have access. Covering the whole city is much more useful than covering the area around my store if I am trying to figure out where my lost pet has gotten to or why my date is late.

  4. Vast electronic surveillance seems to be the path of least resistance for central government. You just hire a bunch of people to sit in front of computers and it feels like you are doing something. Likewise arming legions of SWAT style teams or constructing command centers with fancy monitors and control boards. Actually doing something useful like acting on intelligence from Russia or enforcing immigration law requires leaving the office and doing unpleasant street detective-style work. I see this as much a manifestation of behavioral biases as matters of high principle.

    • Excellent point. Building massive data mining centers to spy on your own citizens is a pretty logical consequence of the CYA-but-take-the-path-of-least-resistence logic governing most bureaucratic entities.

      Conquest’s 3rd Law at work, I suppose.

  5. “I myself have less of a problem with the snooping per se than with the secrecy of the programs. In my view, it is the secrecy, along with an absence of strong institutional checks, that is bound to lead to abuse.”
    exactly

    • You finally got me to read that dimbulb Brooks. My favorite bits:

      “He betrayed the cause of open government. Every time there is a leak like this, the powers that be close the circle of trust a little tighter. They limit debate a little more.”
      I see, we shouldn’t leak because the govt will be more “open” if we don’t leak, by keeping the “circle of trust” a bit less tight. How is it “open” or there a “debate” if there’s still only a small “circle” who knows what’s going on?

      “He betrayed the privacy of us all. If federal security agencies can’t do vast data sweeps, they will inevitably revert to the older, more intrusive eavesdropping methods.”
      So if we disallow “vast data sweeps,” the feds will magically get the power to be even more intrusive? Why would we allow the latter if we’re disallowing the former? He “betrayed our privacy” by pointing out that the feds were betraying our privacy, because they might then betray it even more. Only a nimrod like this could be regularly published in the NYT.

      “He betrayed the Constitution. The founders did not create the United States so that some solitary 29-year-old could make unilateral decisions about what should be exposed. Snowden self-indulgently short-circuited the democratic structures of accountability, putting his own preferences above everything else.”
      “The founders did not create the United States” so that its citizens could be spied on. There was no FBI, CIA, or NSA for the first century and a half of its existence, how did they survive the terrorists??!!! The founders did not want govt bureaucrats making “unilateral decisions about what should be exposed” about their citizens or politicians who “self-indulgently short-circuited the democratic structures of accountability” by secretly surveilling US citizens, hence the Bill of Rights.

      Brooks just throws a handful of idiotic arguments at the wall and hopes something sticks. Nothing does, what does that say about how dumb he is?

  6. “5. … I myself have less of a problem with the snooping per se than with the secrecy of the programs. In my view, it is the secrecy, along with an absence of strong institutional checks, that is bound to lead to abuse.”

    Unfortunately, secrecy is a key to effectiveness. Once the targets know the capability, they evade it.

    “Maybe the key point is (5). Government officials will argue that what they do must remain secret. They cherish secrecy. They claim that it is for our own good that we do not know what they do. I would say that such claims are often made and rarely true.”

    I recommend being more charitable to the snoops. I believe that they “cherish secrecy” because it makes intelligence gathering effective, thereby allowing them to accomplish the goals they are professionally committed to. It’s not fun to work secretly. It’s a burden to not be able to talk about your work at home, among friends, and so on, especially when what you know gives you inside dope on current events.

    I carry no brief for any particular snoops or snooping program. I’m simply offended by the ungenerous characterization.

    The tension between necessary secrecy and the need for “strong institutional checks” is not a new subject. Over the years Congress has instituted numerous arrangements, such as oversight committees and the FISA court, intended to resolve this tension as well as it can be resolved – between episodes of populist bluster (remember the Church committee, the CIA’s “crown jewels” and all that?).

    I think that the achilles heel of such arrangements is that as the overseers take on the onerous burden of National Security, and get the inside dope on threats, they become just like the people they oversee. When you see how the phone call metadata is actually used, instead of how it could potentially be misused, and you see that metadata help foil honest-to-god terror plots, the public’s privacy concerns start to look pretty naive. Remember how President Obama was going to run a transparent administration, and shut down Gitmo? When It’s Your Responsibility, these things become a lot harder.

    Ken

    • It is indeed the secrecy and lack of oversight of what the information is being used for, that are the big problem.

      The idea that secrecy is necessary, and oversight impossible, because the evildoers would evade the system if they knew what it was, suffers from two problems. First, no other system of law enforcement has to keep its methods secret, or evade oversight – and yet, criminals get caught. Second, without oversight, we cannot know that those operating in secret are not, themselves, evildoers. And, secret oversight (those infamous courts that issued the infamous general warrants recently come to light) is no oversight at all.

    • Ken – you fundamentally misunderstand the basic test of any security assessment. The question isn’t “what is someone doing right now” but “what is this person theoretically capable of doing?”

      You say “I’m simply offended by the ungenerous characterization.” I’m sorry, but that illustrates that you just don’t understand how security in a complex system works.

  7. Maybe I am wrong, but I would imagine that people planning to do bad things gave up using the internet for their planning a long time ago.

    Hence PRISM was no use against the Boston bombers.

    After the deed is done, it may well be possible to find some useful investigative leads by looking at sites visited; emails sent and received; etc. etc. But this would be just a part of normal police work anyway and would not rely on a PRISM-like program.

  8. David Brooks seems to be deeply confused in his own mind about what he thinks of Edward Snowden’s disclosure. He seems to think that Snowden is an awful person who has done a terrible thing, but he thinks it’s a good thing that we now know what Snowden has told us.

    Here is an excerpt from his NYT oped:

    http://www.nytimes.com/2013/06/11/opinion/brooks-the-solitary-leaker.html?_r=0

    “For society to function well, there have to be basic levels of trust and cooperation, a respect for institutions and deference to common procedures. By deciding to unilaterally leak secret N.S.A. documents, Snowden has betrayed all of these things.

    “He betrayed honesty and integrity, the foundation of all cooperative activity. He made explicit and implicit oaths to respect the secrecy of the information with which he was entrusted. He betrayed his oaths.

    “He betrayed his friends. Anybody who worked with him will be suspect. Young people in positions like that will no longer be trusted with responsibility for fear that they will turn into another Snowden.

    “He betrayed his employers. Booz Allen and the C.I.A. took a high-school dropout and offered him positions with lavish salaries. He is violating the honor codes of all those who enabled him to rise.

    “He betrayed the cause of open government. Every time there is a leak like this, the powers that be close the circle of trust a little tighter. They limit debate a little more.

    “He betrayed the privacy of us all. If federal security agencies can’t do vast data sweeps, they will inevitably revert to the older, more intrusive eavesdropping methods.

    “He betrayed the Constitution. The founders did not create the United States so that some solitary 29-year-old could make unilateral decisions about what should be exposed. Snowden self-indulgently short-circuited the democratic structures of accountability, putting his own preferences above everything else.”

    And here is an excerpt from his appearance on the News Hour:

    http://www.pbs.org/newshour/bb/politics/jan-june13/politicalwrap_06-07.html

    “JUDY WOODRUFF: Just quickly to both of you. You both agree the media was right, the news organizations were right to report this once they found out, that that’s not a violation of …

    DAVID BROOKS: Yes.”

  9. I don’t see where this is uncomfortable for libertarians, certainly not any who cherish the Constitution. This NSA program violates the 4th Amendment, period, end of discussion.

    If you want to keep discussing anyway, refer to point #3. These programs are not effective. There is no evidence that they are effective, nor is any evidence forthcoming since the programs themselves are secret (which in turn is because they are illegal, see above). And secret law is fundamentally inconsistent with liberty, so if you can’t produce any such evidence, your program is unjustifiable by default and we are morally obliged to shut you down.

  10. I hadn’t read your Constitution article before, it is quite good. I do think you didn’t step quite far enough outside of the current system. Did you consider electing the members of your Audit agency directly by the legislatures of the 50 states? Also I would think it would be stronger to try violations by Security agency personnel in a randomly chosen state court system, with no right of federal appeal and no possibility of Presidential pardon?

  11. The failure of the NSA to stop the Tsarnaevs, through PRISM and the other programs whispered, points up to me the disconcerting question of what these capabilities are really good for. Hopefully they are good at stopping other attacks in situations that must remain secret. But consider what else you can employ those data points for in a Three Felonies A Day/Ham Sandwich Nation world. If we’re really all regularly breaking federal laws and rules without knowing it then all that metadata will come in mighty handy if you need to construct a post facto government investigation or prosecution of someone who’s run afoul of the powerful for political reasons. Every administration from Wilson to Kennedy to (arguably) Reagan found an excuse for that sort of thing whether it was the Teamsters or the Committee in Solidarity with the People of El Salvador. There’s no reason to think this administration and the ones that will follow it aren’t similarly tempted, and now they have a lot more to work with.