The Price We Pay…


Ethan Gach

I write about comics, video games and American politics. I fear death above all things. Just below that is waking up in the morning to go to work. You can follow me on Twitter at @ethangach or at my blog, And though my opinions aren’t for hire, my virtue is.

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26 Responses

  1. Avatar Jaybird says:

    If that’s the price we have to pay for deterring Jihadist attacks

    “I would bomb them for Allah, but I don’t want them violating my 4th Amendment rights first.”Report

  2. Avatar George Turner says:

    Well, one thing Sullivan probably overlooks is that all this intelligence gathering seems to pointedly ignore jihadists. It seems the only time they go back and listen to phone conversations is long after a successful attack. That can be extremely useful (and probably led directly to the Tsarnaev partner who was shot dead during interrogation in Florida), but I don’t think people, even Sully, would go along with all the intrusion if it was just for forensics.

    Joel Pollak piece at Brietbart asking why we should collect information if the administration is not willing to use it.

    It’s a point not lost on those of us who are having all our online and phone data stored in a government archive.

    There’s another point getting lost in all this, even at Volokh. All this data collection had little social effect when it was secret and hidden under layers of top secret classification. Well, we’re through the looking glass now, and we all know that everything is in there. So why, in any future legal criminal proceeding, shouldn’t the prosecutor and defense lawyer subpoena NSA data that will either convict a client or exonerate him? The judge knows the data exists. The jury knows it exists. Even the bailiff knows it exists. Last week such data “didn’t exist” and therefore was off the table. Now we know. The PRISM system is still classified, and a judge might try to rule it out, but how on Earth could the phone records and chat logs recorded by that system, concerning only Dr. Richard Kimble and a one-armed man, be national security concerns? All it takes is one ruling to start the avalanche, and since all these records were legally obtained they should all be admissible in court, and hiding behind national security doesn’t work once the secret is out.

    So when we have the next heinous killer sucking up the 24/7 cable news cycle, the public outcry to access the NSA data on him will become a clamor, led by the victim’s family. The camel will wander into the tent, and the next thing you know PRISM data will be the biggest boon to divorce lawyers since the sixties, the pill, and disco. Instead of feeling safe that your online personal activities could only be accessed if you tried to blow up Manhattan, and even then only by top counter-terrorism officials at the FBI, CIA, and Pentagon, soon your wife’s divorce lawyer could browse them by jumping through a few trivial hoops, as could your local sheriff, or perhaps even concerned citizens on the school PTA looking to build a case that you’re an unfit parent.

    The question we should be asking isn’t “is it legal?” The question is what it means now that the extent of the databases are no longer a closely held secret confined to an elite group of government code breakers.Report

    • Avatar Michael Drew says:

      Phone records like this have always existed, and were always known by judges to do so. Therefore, judges have always known they can issue warrants to telecom companies to have them turned over for possible use as evidence in criminal trials. They still retain full discretion to determine when those records enter as evidence in any trial they’re presiding over. So what is it you’re saying has changed wrt to what records are entered into evidence in trials now?Report

    • Avatar George Turner says:

      They don’t just have phone records, they have the conversations, the locations, feeds from the phones cameras (in some cases), along with all the e-mails, even ones that were deleted years ago and sent to the trash bin, and your peer-to-peer encrypted file transfers. They also have chat logs, photos, and everything else. There’s a recent Wired story that discussed the Utah storage facility to contain just about everything about you.

      It’s a good read.Report

      • Avatar Michael Drew says:

        Yes, and we also (still) have judges who preside over our criminal procedures.Report

      • Avatar George Turner says:

        And so how could a judge rule against introducing exonerating evidence held by the state in a government archive?

        The accused says he’s innocent and was thirty miles away talking to his girlfriend at the time of the double rape and murder. The federal government has not only the location of his phone during the time in question, but recorded the actual conversation he had with his sweetie, and might even have a few camera pictures of him taken in real time showing him at the place where he said he was. If the defense can’t admit that evidence in court, evidence in the possession of the same government that is prosecuting the case, how can the trial be fair?

        As I said, open knowledge of the system might be a game changer for all concerned. Either we adapt to the existence of the data in such a way as to protect our rights and get back in our comfort zone of freedom and liberty, or we need to scrub the data and reformat the drives.Report

        • Avatar Michael Drew says:

          But it’s open knowledge of industrial record keeping practices – knowledge that’s long been in place – that effects (effected) that game criminal law game change, not knowledge that federal law enforcement and security agencies have access to the records. Prosecutors have for a long time understood that records like this exist and can be subpoenaed/ordered into evidence; presumably defense attorneys as well. It has been public knowledge. I don’t understand how disclosure that federal agencies access them changes that. I think you’re just a step behind.Report

        • Avatar George Turner says:

          It’s not that the federal government has access to the records, it’s that they have records that wouldn’t otherwise exist because the companies don’t bother archiving things like that. For example, your phone company doesn’t record your conversations, it just transmits them to the other party. You can’t subpoena an audio or video chat from Skype because they don’t store it. In fact, Skype wouldn’t normally store anything because they wouldn’t have billing records. But as it turns out, the contents of all those conversations are being stored by the government, and as such should be subject to subpoena.Report

          • Avatar Michael Drew says:

            You’re right, I was confused what you were focusing on. I think you’re making a lot of leaps about what has to be admitted in court.Report

          • Avatar Shazbot5 says:

            “the contents of all those conversations are being stored by the government”

            I thought that they explicitly denied that they were recording and keeping all of the content, i.e. that they only keep a database of phone numbers, call durations, call locations, and (maybe) names on callers’ accounts.


            • Avatar Just Me says:

              I believe the phone metadata and the electronic communications are two different things. Look up PRISM for more information on electronic communications surveillance program.Report

            • Avatar Stillwater says:

              Well, I’ll defend Goerge on this one. We have no reason at all to think gumming is telling the truth on this.

              OK. Maybe a bit of a reason. But a bit of a reason isn’t much to hang your hat on. On reflection, I don’t think it would hang on that.Report

              • Avatar Shazbot3 says:

                If they do have a database of all the calls and everything people say, that could get people nervous. Would be a bigger story, no?Report

              • Avatar Stillwater says:

                I’m not so concerned about the story as I am about the facts. There’s all sorts of software out there that transcribes verbal into written. It’s easy peasy at this point. I knew a guy who made his money by selling just that type of software to “security” firms. It’s not like what we’re talking about is some hypothetical futuristic scenario. It exists right now. And given the track record of Federal Gummint in implementing and expanding these types of programs – going back at least as far as TIA – I see no reason to think gummint isn’t transcribing actual communications.

                As Patrick said, this goes way beyond any particular President.Report

    • Avatar Barry says:

      “Instead of feeling safe that your online personal activities could only be accessed if you tried to blow up Manhattan, and even then only by top counter-terrorism officials at the FBI, CIA, and Pentagon,…”

      This is a massive stretch, and assumes institutional restraint on the part of institutions which have never exhibited such restraint.Report

  3. Avatar Michael Drew says:

    If[…] the government were using surveillance techniques like this to shut down protest, silence dissent, and imprison dissenters

    …then that would be a significantly different thing than this is, or at least appears to be thus far, wouldn’t it (except perhaps the silencing dissenters to some extent by keeping these methods secret, thus less able to be criticized – which doesn’t have to do with the surveillance per se)?

    Mass surveillance, which is what we have evidence of here, is bad, and bad enough to be outraged about on its own. It doesn’t say much to say that we (including Barack Obama) would think it was bad if it was being used to imprison political dissenters and shut down protest. Those things would be bad, whatever the means used, so obviously you get to “bad” by stipulating them as the ends of this surveillance by comparing it to what is done where those ends are clearly in evidence. You’re not actually discussing the surveillance itself at that point anymore.

    If your view is that “using surveillance techniques like this to shut down protest, silence dissent, and imprison dissenters” is what is being done with these techniques here, then be clear about the claim – first by not relying on a comparison to a regime known to unambiguously do those things. If it’s happening here, you can just say it’s happening here. If the point is that the same thing is happening in Iran and we’ve condemned it, then, still, be clear that you’re saying that, so that can be what we discuss. But trying to turn these revelations into those kinds of abuses by means of a comparison just turns the conversation from what everyone is trying to discuss – the privacy impacts on innocent Americans of this surveillance (done out of earnest desire to protect against terrorism, as your own initial framing suggests) – to a different topic, namely what we would say about these techniques if they were (primarily) being used to suppress internal dissent, or indeed whether that is indeed what is being done. And if that’s what you do want to talk about, great, just say so. But the dominant conversation at the moment, as far as I was aware, and one at east worth dwelling on before moving on to what would be an even more serious conversation about the implications if these techniques are being used to imprison dissenters, was about the privacy implications of these programs for ordinary people, just taking the aims of the programs for what they ostensibly are, i.e. protection against terrorism, even if out of greatly over-zealous and political concern over the issue.

    This is not to say we shouldn’t discuss whether what you describe Iran doing isn’t to some extent happening here. It’s just to say that we should try to keep track of what we’re talking about at any one moment. If those thing were being done here, that conversation would supersede (in my view, and I think practically speaking) a conversation about the meaning of these methods for privacy rights and norms, just under the assumption that the programs are on the up-and-up as to their real aim (i.e. protecting against terrorism not suppression of internal dissent), even if they’re misguided as to their relationship to Americans’ legitimate privacy expectations. And that latter conversation is one worth not having unnecessarily superseded IMO – and also one that is fully justified and underway pursuant to the facts on the table, even under the “up-and-up” assumption I describe, without reference to the “Iran” hypothetical. The latter hypothetical adds nothing to the conversation that is already underway, and only sensationalizes and obscures the issues in it that people are trying to discuss even now.

    If you want to propose moving a discussion about the possible use of these methods by the U.S. government to suppress internal dissent, then do so. It wouldn’t be a wild-eyed and crazy thing to suggest. But for that very reason, if you want to do it, you should do it concretely and intentionally. Not-but-in-effect doing it via oblique comparison within a different conversation the way you do just confuses both questions.Report

    • Avatar George Turner says:

      I agree that it would be best to separate the two subjects. The monitoring as intentioned by the NSA is probably on the up and up and respects people’s privacy concerns to a great extent.

      However it’s a high probability that the system is being used to stifle internal dissent, implied by Obama prosecuting twice as many people under the Espionage and Sedition Act than all previous administrations combined. I suspect they’ve been drinking from the fire hose and can’t help but to prosecute at least some of the leakers.

      The other worrying thing is that by prosecuting such leakers, given that high-level people throughout government know about the NSA’s capabilities, it shows that somewhere, someone is running PRISM checks and other tools against government officials. That buys silence, and compromises people who might otherwise raise objections. Will their rant on Fox News be followed by their “secret” extra-marital affair hitting the tabloids? They can’t know, but they can fear.

      No matter what procedural safeguards are put in place, access to such a database gives an extreme level of power, to intimidate, blackmail, compromise, or destroy other public officials, bureaucratic rivals, and peons. All it takes is a few bad apples to start leveraging that power and everyone suffers, creating J Edgar Hoover on steroids with detailed information that Beria couldn’t dream of.

      It may be that no state with a Gestapo, NKVD, or other secret internal apparatus can survive the doubts and suspicions that come with the mere existence of state files containing everybody’s personal secrets. It may be that we have to destroy the archives to save the government.Report

      • Avatar Michael Drew says:

        Prosecuting leakers is something of a category all to itself that overlaps all these concerns.

        We wouldn’t say that prosecuting someone who leaked classified information in a way that harmed security and produced no recognizable public information benefits (or is done primarily just to express dissent against a government they serve) would be equivalent to using surveillance to suppress private internal dissent, i.e. people who haven’t taken jobs and signed agreements that make it a crime to do those leaks. I wouldn’t say it’s even the same thing to prosecute a true whistleblower who has made such agreements not to disclose classified information as it would be to use surveillance to suppress, again, purely private dissenters. Not the same thing, even though far less defensible.

        Leak prosecutions are a category unto themselves as compared to the issues of excessive surveillance done out of honest concern over security on the one hand and authoritarian suppression of private dissent on the other. I don’t disagree that actions in one area legitimately affect the public’s inclination to trust an administration in other areas, but I insist it’s better to maintain our understanding of these things as separate phenomena. and in my opinion it’s one thing to be less inclined to trust the government on any one of those things because of what they’ve done in another, but I think it’s another to simply decide that it’s highly likely something has happened in one just because something else (not the same thing) has happened in another. And if you’re just saying it’s legitimate for you to be suspicious about that thing, well this is the federal government we’re talking about. It was always legitimate to be suspicious. But jumping to conclusions is just jumping to conclusions.Report

    • Avatar Will Truman says:

      I don’t often get to say this, so I thought I would take the opportunity: I agree with every word of MDrew’s here.

      I have my concerns here, and I understand a lot of the concerns that I don’t share because I think something is wrong with me… but we do need to differentiate between what is happening and what we fear will happen.

      And, I should add, if what we fear will happens happens, we do really need to go ballistic then and not start talking a nuanced view about how certain groups really do look kind of suspicious and while of course these people have a right to express their opinion they have to be prepared for scrutiny (in the form of NSA attention) or somesuch crap like that.Report

      • Avatar Michael Drew says:

        Thanks, Will. I’m not sure I even totally agree with me. The concern about “abuses” (beyond the simple abusiveness of the programs on their own terms) do present themselves pretty much immediately. But that’s a complicated conversation about how much is speculation versus what we might have evidence of, and then what that all means. And there’s a very concrete issue fully in evidence to be discussed that is directly before us on the table just relating to the programs on their terms. I can’t really say that the two conversations shouldn’t happen during the same time period just after revelations like this, I just would like if we could be clear what we’re addressing with any one particular question or contention.Report

      • Avatar Jim Heffman says:

        “we do need to differentiate between what is happening and what we fear will happen.”

        In other words, “go away, concern trolls”.Report

  4. Avatar BlaiseP says:

    Sullivan is, to put it baldly, an idiot. The point of terrorism, whole and entire, is to provoke the Big Bad Oppressor to alienate himself from the people. More Bakunin and less baked goods for that overeducated oaf.Report

  5. Avatar Will H. says:

    Every time an American loses productivity by showing up an hour early to the airport to get through the security checkpoints, the terrorists win.Report

  6. Avatar Paleoprof says:

    ” he’d rather make up for that lack of evidence with blistering emotion rather than skeptical reason.”
    Andrew Sullivan in a nutshell.Report