Indefensible

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Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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  1. Avatar Sam
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    says:

    That Obama is the person named here – and not Congress itself – is telling. But Joshua Foust says it better here. His take is worth reading in that it contextualizes what was happening in a way that “Oh my God, the government was listening to ME!” doesn’t.Report

  2. Avatar M.A.
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    says:

    Compare: “Why did the FBI not know where the 9/11 hijackers were, and who they were in contact with?”

    What is needed is a legal change and likely a constitutional amendment. Right now the only negative quality to an illegal search is that it may not be used as evidence in a court of law. That’s something the FBI and NSA are more than willing to accept since they can always get the evidence another way – the caught person’s cell phone itself, subpoena to the specific phone records after the raids, or “enhanced interrogation.”Report

  3. Avatar Marchmaine
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    says:

    Technical nitpick… this is Data Data, not “metadata.” The Guardian reports:

    “Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls.”

    Metadata would be if NSA were to ask VZ what *sort* of data might be available, if we (the NSA) were interested. But this, this is simply extracting the actual data; we might call it “big-data” if they go so far as to get the machine data from the towers, but from the description above, probably “just” garden variety data. They are way past Metadata.Report

    • Avatar Stillwater in reply to Marchmaine
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      says:

      Hasn’t this program been in the works for a long time? Dozens of years? At the beginning of the Bush Years it was called Total Information Awareness, or somesuch. Then the name changed but the acronym (TIA) remained. Doesn’t this go all the way back to the Echelon days (which only conspiracy theorists believed at the time)?Report

      • Avatar Marchmaine in reply to Stillwater
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        says:

        I’m not sure… I believe the NSA has always been engaged in “eavesdropping” communications that are sent over public airways…a sort of grey area that they defended as something akin to a stakeout. This strikes me as rather more direct… no need for a stakeout if you can just walk right in to the location you are watching and look for anything that might be incriminating. That’s my recollection, anyhow… have they already been inside the gates this past decade, perhaps yes.Report

    • Avatar Morat20 in reply to Marchmaine
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      says:

      Actually, it’s metadata.

      It depends on your point of view. If you consider the content of the phone calls to be data, then information about the calls but not the content is “metadata”. However, if you lack any concern or information about the content of the calls, then the information you’ve got is simply data.

      I’m comfortable classifying it as metadata simply because I consider the communication in the call proper to the key data.Report

      • Avatar Marchmaine in reply to Morat20
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        says:

        That would imply that there is a historical collection of all phone content for all calls for which knowing the above would indeed be metadata.

        Is there such a thing? If there is, it would have to be so secret and simultaneously massive (and exponentially growing) that keeping it secret would be really hard. The amount of data Telco’s generate just for switching, location, and billing data is astounding… blow that up with voice records? Inconceivable! is all I would be able to say.Report

        • Avatar Morat20 in reply to Marchmaine
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          says:

          Patrick’s reply covers it. Metadata is data about data — it’s all relative to what you’re after and what’s important to you.

          Using it to describe this stuff is acceptable parlance, though, because it is data about data — information about phone calls, but not the content of the phone calls.

          (And no, it doesn’t imply that. You can have metadata and lack the underlying data — that actually happens surprisingly often, both in data terms and in real life. What we have here is data about data. Information about phone calls, but not the phone calls themselves. Calling it metadata is legit, even if there are no records of the call)Report

          • Avatar Marchmaine in reply to Morat20
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            says:

            Fine. I disagree, but I’ll concede the derail.Report

          • Avatar Will H. in reply to Morat20
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            says:

            A lot of the law comes from older law regarding mail.
            The address information on the back of the envelope has no privacy protection.
            Likewise, all expectation of privacy is forfeited by the sender once the piece of mail is opened.

            On a practical level, I think more people dial the wrong number than send mail to the wrong address.Report

    • Avatar Patrick in reply to Marchmaine
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      says:

      Metadata is a relative term.

      Metadata is data about the data. If you’re already looking at data about the data, it’s only metadata relative to the data. You can start looking at data about the data about the data, and then the original metadata is data, relative to what you’re talking about, which is now metadata.

      Metadata is a term that only really makes sense when you’re talking about levels of abstraction.Report

      • Avatar Marchmaine in reply to Patrick
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        says:

        Right… which is my point… this *is* the data that phone companies have, unless we also think they have all the phone calls ever made on their networks recorded. They have *more* data, like the PII data linked to the phone numbers and whatever exactly the “unique identifiers” signify. But that is just data that (as far as we can tell) the NSA did not specifically request (at this time).Report

        • Avatar Morat20 in reply to Marchmaine
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          says:

          Metadata is data. (“Data” is right there in the name). But not all data is metadata.

          Calling it metadata is completely accurate when it is, in fact, metadata — even if it’s data for the mill. 🙂 Even when it’s ALL the data you get, not the underlying data it’s about.

          Yes, it seems a bit recursive, but that’s not a sin. Got to be comfortable with recursion if you want to have fun with math, computer science, or data analysis.Report

  4. Avatar Kazzy
    Ignored
    says:

    Nailed it, Mark.

    They need to stop this.

    EDITED TO ADD: “They” includes Obama, Congress, the Courts, and whatever other governmental officials sworn with upholding the Constitution are involved in this continuing.Report

    • Avatar Jaybird in reply to Kazzy
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      says:

      From what I understand, Bush did it too.Report

      • Avatar Kazzy in reply to Jaybird
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        says:

        Hmmm… I think you might be being humorous here, but I’m not sure. If you aren’t, I’d respond by saying that Bush is no longer in office and is powerless to stop it. I don’t care who started it. Well, I do. But what I care most about it stopping it. Obama and the others mentioned are positioned to do so. Bush, not so much.Report

        • Avatar Morat20 in reply to Kazzy
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          says:

          This has been going on for a long time, under two completely different administrations on completely different sides of the ideological fence, and signed off on by the same judge that famously used the Brocolli argument against the ACA.

          I’d say I’m not outraged because of outrage fatigue, but that’s not exactly the right term. This? This is nothing new. I am not surprised. I would, in fact, have been very surprised if it turned out this WASN’T happening.

          Which leaves me in the weird place where I’m basically “Yep, really wish that wasn’t the way it was but I’ve gotten used to it” and basically just wonder “Why should I get excited about this now? Nothing’s changed.”Report

          • Avatar Kazzy in reply to Morat20
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            says:

            All fair points. But if we accept this as the norm, then the next major abuse of civil liberties will be justified as only being a step beyond the status quo. Rinse and repeat.Report

            • Avatar Morat20 in reply to Kazzy
              Ignored
              says:

              That’s perfectly true and I agree heartily. And yet, i can’t get past “Why are we/why should we get outraged now?”

              Because that seems rather important. Because if the why isn’t basically “We’ve always been outraged, we’re still outraged” then the problem isn’t the program — but some small issue with circumstances or who holds the White House.

              In which case, this pretty much is the status quo. Because we, as Americans, don’t have a problem with “what” — just “who”.Report

              • Avatar Mark Thompson in reply to Morat20
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                says:

                I’ll say that when the initial outlines of this story came out in 2007 or so, I was no less outraged; it and related stories were probably the thing I wrote about most on my old site, and in no small part it was one of the issues that inspired me to start blogging in the first place.

                So why get outraged again about it now? Because now we’ve got evidence of just how broad and indiscriminate the scope of this is; it’s the realization of something that’s been assumed (and vaguely described), but not proven, for at least the last two years. Moreover, this is the first time that the breadth of the administration’s claimed authority on this issue has become clear.

                The other part of this that really irks me in a way that’s new, that makes something bad even worse, is that the feds are actively forcing companies to provide such indiscriminate data rather than merely obtaining it from them voluntarily, in which case my ire at the government would be reduced by the amount my ire at the telecoms would be increased. Knowing that this is something that the administration is pursuing with the explicit threat of prosecution means that the ire should be fully concentrated against the administration.

                And that’s before getting into the issue of the fact that these orders are secret and have effectively created a system of secret laws, which would not be the case if the data sharing were purely voluntary by the telecoms.Report

              • Avatar Creon Critic in reply to Mark Thompson
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                says:

                What do you mean by “have effectively created a system of secret laws”? In your view is FISA unconstitutional?

                As for the larger point in the post, “the defence of the realm” is the justification successive administrations, congresses, and courts will make. “The Constitution is not a suicide pact”, would be another way of saying it. The economy, or education, or national security take precedence – to the detriment of civil liberties’ ability to even break through the normal froth of politics, let alone achieve a countervailing push against the idea that the authorities need this type of surveillance. Civil liberties issues such as this just aren’t a high enough priority for enough people, thus far, to achieve a shift away from deferring to authorities and shift towards concerns about big brother. Barring some scandalous misuse/abuse of the information, not just mere collection of metadata, I’m not sure how the consensus shifts pushing civil liberties up the priority ladder.Report

              • Avatar Mark Thompson in reply to Creon Critic
                Ignored
                says:

                Creon Critic:

                This is what I had in mind with my “secret laws” statement (admittedly a bit of polemics, but in my view apropos):

                In February, the Administration succeeded in blocking a challenge to its surveillance policies by arguing that any confirmation of such programs would put American lives at risk. Now that the case is dismissed, they have simply acknowledged the program. The decision is Clapper v. Amnesty International, No. 11-1025, and it is a true nightmare for civil liberties. The Supreme Court rejected the standing of civil liberties groups and citizens to challenge the Obama Administration’s surveillance programs. President Obama has long been criticized for his opposition to such lawsuits and his Justice Department has continued a successful attack on the ability of citizens to challenge the unconstitutional actions of their government in the war on terror. The 5-4 opinion by Justice Samuel A. Alito Jr. insulates such programs from judicial review in yet another narrowing of standing rules.

                Link: http://jonathanturley.org/2013/06/06/obama-administration-confirms-massive-surveillance-program-by-nsa/#more-65355Report

              • Avatar Barry in reply to Creon Critic
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                says:

                “What do you mean by “have effectively created a system of secret laws”? In your view is FISA unconstitutional?”

                Please note that the second sentence is a non sequitor; secret laws are secret laws.Report

              • Avatar George Turner in reply to Mark Thompson
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                says:

                Orin Kerr at Volokh says he has three thoughts on the matter, but he actually lists four.Report

              • Avatar Michael Drew in reply to George Turner
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                says:

                Heh. 1), 2), 3), and 4), right there in black and white. Amusing.Report

              • Avatar Mike Schilling in reply to Michael Drew
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                says:

                He didn’t expect a sort of Spanish Inquisition.Report

              • Avatar Kolohe in reply to Michael Drew
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                says:

                THERE… ARE… FOUR… THOUGHTS!Report

              • Avatar George Turner in reply to George Turner
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                says:

                Yeah, I wouldn’t be hiring him as a lawyer. ^_^

                His final point was rather interesting. Is ongoing access (probably real time) more of a pen register or is it still just a business record like a box of receipts?

                50 USC 1842 – pen records vs 50 USC 1861 – business records

                Of course, the letter of the law is probably irrelevant.Report

              • Avatar Kazzy in reply to Morat20
                Ignored
                says:

                Morat,

                I’ll say this is something I don’t follow closely simply because of limited time in the day. When it’s brought to my attention, such as via Mark’s post here, the outrage surfaces. But it is not something I actively seek to engage with.

                Which probably does say my outrage has limits.Report

              • Avatar Barry in reply to Morat20
                Ignored
                says:

                “That’s perfectly true and I agree heartily. And yet, i can’t get past “Why are we/why should we get outraged now?””

                I’m sure that people were arguing against the Civil Rights Movement on those grounds.Report

        • Avatar Jaybird in reply to Kazzy
          Ignored
          says:

          I shit you not, the first comment I saw in this editorial was Peter Mizrahi’s:

          The current incident about monitoring of phone calls is nothing new it has been going on since the Bush Administration and the passage of the Patriot Act, so why all the clamouring now.Report

      • Avatar Mike Schilling in reply to Jaybird
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        says:

        And whoever’s elected in 2016 will do it too, even if it’s Rand Paul. The political consequences of having a terrorist attack on the US blamed on your naive idealistic scruples are too high to risk.Report

        • Avatar Patrick in reply to Mike Schilling
          Ignored
          says:

          It’s Congress’s job to check the Executive.

          It’s the Executive’s job to use the tools Congress gives them to do stuff. If we want this sort of thing to stop, “Well, the next President we elect will stop doing it” is pixie-dust-fairy-dream-hey-where’s-my-unicorn?Report

      • Avatar George Turner in reply to Jaybird
        Ignored
        says:

        I know a guy we can elect to stop this, who promises no wiretaps without warrants. Unfortunately, that candidate comes from an alternate reality universe.

        Meanwhile, in our reality:

        NBC’s Pete Williams reported on Morning Joe earlier today that the Department of Justice will “definitely” open an investigation into the leak of the NSA’s data-mining efforts with Verizon — and who knows how many other telecoms — that ended up in the Guardian last night.

        The only way to stop these kind of leaks is to put a blanket wiretap on reporters.Report

        • Avatar Michelle in reply to George Turner
          Ignored
          says:

          Technically, the data acquired from the telecoms aren’t wire taps as no conversations are recorded, only information about the calls such as the originating number and duration. And there was a court order in place so, as disturbing as such surveillance might be, it’s not illegal.

          Time for Congress to revisit the Patriot Act.Report

          • Avatar Mike Schilling in reply to Michelle
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            says:

            This is the same as the data/metadata distinction that was being discussed above, which I stayed out of because everyone was both right and talking at cross-purposes.Report

            • Avatar Morat20 in reply to Mike Schilling
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              says:

              I think the American public is quite capable of differentiating between “listening in on my conversations” and “looking at who I called, you know, the stuff that shows up on my bill”.

              The former? They dislike. The latter? Don’t seem to care.

              Call it data. Call it metadata. Call it Bob. Just don’t pretend they’re the same thing, because the Average American doesn’t.

              Who does, really? Take an analogy: Is knowing you spoke to an attorney the same as knowing what you spoke to the attorney about? Are they considered the same under the law? Should they be?Report

          • Avatar Kazzy in reply to Michelle
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            says:

            That it’s not illegal is part of the problem. It should be illegal.Report

            • Avatar Morat20 in reply to Kazzy
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              says:

              Ship totally sailed in 2002 with the Patriot Act.

              Buck up, things have gotten better. Obama actually used FISA rather than claiming he unilaterally had the power to do so, which I believe is a step up from Bush.

              In the meantime — Congress has known about it since it’s inception, FISA — rubberstamp that it is — has overseen it, and it’s not exactly a secret law. We’ve been hearing about this since the Patriot Act passed and the response is a big, fat, yawn.

              If they were wiretapping actual conversations, people might get upset.Report

            • Avatar George Turner in reply to Kazzy
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              says:

              Turns out they’re wiretapping people’s actual conversations. In fact, one of the FBI agents admitted that they could go back and listen to Tamerlan Tsarnaev’s phone conversations, which are all archived somewhere because he used a phone in the US.Report

            • Avatar Will H. in reply to Kazzy
              Ignored
              says:

              I think it’s more the “Throw money at a federal agency for over-paid federal employees to perform an absolutely useless task” to be the part that should be illegal.

              Next up:
              Government undertakes to influence Nielson’s ratings system to keep Golden Girls on the air.
              For only eighty grand per g-man.
              Plus benefits.Report

  5. Avatar George Turner
    Ignored
    says:

    On the one hand, “if it saves even one life!”, “keepin’ our childrens safe” and all that.

    On the other, you can apparently call an embassy from an Al Qaeda cell phone every day for a month, telling them when you’re going to attack it, and they still wouldn’t do a darn thing to stop you, and then they’d delete all the “metadata” about your calls just to avoid political embarrassment and go arrest a random movie producer. So committing an Al Qaeda linked terrorist attack may be the best way to have your phone records purged from the archive.

    So what are they really after, if not Al Qaeda? This program is probably a way to sift through patterns in the calls to Tea Party groups so they can flag people for IRS audits.Report

    • Avatar greginak in reply to George Turner
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      says:

      wow…that is some strong crack you got there george.Report

    • Avatar George Turner in reply to George Turner
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      says:

      Leno, Stewart, and a host of Congressional committees are probably smoking the same batch.Report

    • Avatar Michelle in reply to George Turner
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      says:

      George–you risk becoming a parody of yourself with this kind of rant. Or the next Glenn Beck.Report

    • Avatar Pierre Corneille in reply to George Turner
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      says:

      On the other, you can apparently call an embassy from an Al Qaeda cell phone every day for a month, telling them when you’re going to attack it,

      I imagine this is how the caller-ID reads:

      “Daugh, Albert K.”

      Report

      • Avatar Barry in reply to Pierre Corneille
        Ignored
        says:

        “On the other, you can apparently call an embassy from an Al Qaeda cell phone every day for a month, telling them when you’re going to attack it, ”

        Squat and sh*t out an opinion – that’s George.Report

      • Avatar George Turner in reply to Pierre Corneille
        Ignored
        says:

        But don’t you sometimes get frustrated that everyone sits around talking without giving you much insight into what they really think, like people at a dinner party too afraid of offending anyone by cutting to the heart of a matter, instead talking in circles and hedging, or talking about the talk in a “meta conversation.”

        The issue with the data gathering isn’t the breach of public trust, it’s that the public’s trust was already breached by a government that showed it was willing to abuse law, policy, and procedure to target ordinary Americans for partisan political gain, and do it across multiple agencies. If they were willing to do that, why would they stop with just the IRS and DoJ? If they were willing to lie to Congress and the American people repeatedly and continuously (IRS, DoJ, BATF, State), then they can’t be trusted when they claim our privacy was not violated. In fact, isn’t it a bit suspicious that such an administration happens to have twice as many prosecutions under the 1917 treason and sedition acts than all previous administrations combined? Such a charge must be pretty hard to suspect, and harder still to prove, unless they happen to be running PRISM searches on people who are definitely not foreign terrorists.

        The truth might be found in the meta data about people the administration went after that it shouldn’t have otherwise suspected.Report

        • Avatar Pierre Corneille in reply to George Turner
          Ignored
          says:

          “The issue with the data gathering isn’t the breach of public trust, it’s that the public’s trust was already breached by a government that showed it was willing to abuse law, policy, and procedure to target ordinary Americans for partisan political gain, and do it across multiple agencies. ”

          Maybe, and frankly, it’s hard for me to find anyone on this thread who thinks otherwise although some might discount how far it’s gotten or dispute who precisely is to blame.

          But I think the Benghazi fiasco was the least of the breaches, unless more information is brought to light. And if Mr. Daugh was so careless as to leave his name on the caller-ID to the embassy, then his supervisors are not getting the top recruits they’re credited with getting.Report

    • Avatar Matty in reply to George Turner
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      says:

      I know I should let it go but assuming this is Benghazi you’re talking about the cell phone would have been in Lybia or a neighbouring country, no?

      Does the US government have the same level of influence over Lybian telecoms it does over those based in the US?

      Maybe if we reversed it – do you think Verizon would have handed over the records if the request came from Lybian authorities for details of every call to their Washington embassy?Report

  6. Avatar Stillwater
    Ignored
    says:

    The NSA whistle-blower has revealed himself in a very interesting interviewin the Guardian.Report

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