David Simon Misses the Point

The acclaimed creator of HBO’s The Wire, David Simon, is using his experience as a reporter and deep knowledge of wiretaps to set the record straight on all this ruckus over the leaks regarding the NSA and telephone records,

“Having labored as a police reporter in the days before the Patriot Act, I can assure all there has always been a stage before the wiretap, a preliminary process involving the capture, retention and analysis of raw data. It has been so for decades now in this country. The only thing new here, from a legal standpoint, is the scale on which the FBI and NSA are apparently attempting to cull anti-terrorism leads from that data.”

Yes, scale is very much the issue here. Simon himself points that out, but for some reason misses why that might be an issue for anyone. His post reeks of late-to-the-party concern-trolling. This is all old news guys! Stop acting so surprised! Weren’t any of you paying attention when the Patriot Act was originally passed in the first place?

To bring his appeal to banality home, Simon points to Baltimore in the late 1980s,

“There, city detectives once began to suspect that major traffickers were using a combination of public pay phones and digital pagers to communicate their business. And they took their suspicions to a judge and obtained court orders — not to monitor any particular suspect, but to instead cull the dialed numbers from the thousands and thousands of calls made to and from certain city pay phones.”

The difference of course being that rather than collect ALL of the records from one or a few pay phones, the government in this case is collecting ALL of the records from, presumably, ALL of the phones.

Furthermore, unlike city justices handing down these orders in city courts, the NSA surveillance goes through FISA, is top-secret, and for that very reason different not just in magnitude but in kind as well.

Simon tries to pin down the real issue as he sees it,

“The question is more fundamental: Is government accessing the data for the legitimate public safety needs of the society, or are they accessing it in ways that abuse individual liberties and violate personal privacy — and in a manner that is unsupervised.

And to that, the Guardian and those who are wailing jeremiads about this pretend-discovery of U.S. big data collection are noticeably silent.”

The Guardian is noticeably silent on this issue, as are many others, because we are in no position to judge the legitimacy of these practices. We are not, and by law cannot be, privy to the relevant “facts on the ground” on the basis of which government officials and national security “experts” tell us that these programs “strike the right balance,” and are necessary to combat terrorist threats and must necessarily be secret in order to do so.

The potential for abuse is less of an issue for me than the secrecy surrounding it, mainly because I, like most people, understand that abuse is inevitable. Let the weather stay dry enough and a fire will start. Likewise, allow individuals, or institutions, to act in secret for long enough and the abuse will come.

As Simon points out, the data is out there, it exists, and nothing we can (or are likely to) do will make it disappear. What’s more troubling, and what Simon doesn’t seem to get, or be bothered by, is the  banality of the secrecy surrounding the NSA’s activities. Over a decade after 9/11 and many people seem to be thinking, “Well of course they need to be secret about it!”

Even now, respected representatives and pundits from both major political parties seem more concerned with the fact that there was a leak, than everything we wouldn’t have known for sure without it. And at what cost?

If Simon’s (admittedly fictional) television series is any indication, the “bad guys” that the “good guys” are after aren’t stupid or backwards (am I the only one sensing a latent bigotry and/or racism from what’s implied in asserting that “of course the Jihadi terrorists don’t know we spy on them?”) They, like anyone else, adapt to conditions on the ground. If the police start culling records from pay phones, they’ll stop using pay phones, and then eventually move to pagers, and burners, and coded images, etc.

My own intuition is that anyone dumb enough to talk even semi-candidly about plans to commit terrorists acts, or to try and connect with other would-be terrorists, over the phone, through email, or via text, aren’t the ones planning the supposedly “existential” plots that these programs are meant to prevent.

If someone gets the launch codes to a nuke, or any amount of the material inside of one, I doubt they’ll be posting about it on Facebook, or their iPhone, or even one of the few remaining pay phones.

And yes, I understand that the point of aggregating data like this isn’t to find THE clue, but to piece together many clues based on some manner of pattern recognition. But if the pattern recognition used for signature strikes is any indication, we can say with absolute certainty that there will be innocent people victimized by these practices.