(The middle section of this post is a thorough re-statement and critique of David Simon’s argument that their are few “legitimate” concerns that can be raised regarding the NSA’s collection of metadata and web records. Because I quote Simon at length, several times, his statements have been italicized in order to make it easier to distinguish them from my own).
Forced to react to the developing leaks related to NSA surveillance programs and procedures, President Obama said he “welcomed” the debate–one which we would not be having had Edward Snowden not forced the issue by leaking top secret documents.
Indeed, despite pronouncements like these from the President and others, no one seems to actually want to have a debate over how, and at what point, we should balance civil liberties with law enforcement tools. When Wikileaks released the documents it received from Bradley Manning there should have been a thorough debate about the role of the U.S. military and foreign policy in the world. New information regarding U.S. negligence and abuses on the battlefields of Iraq and Afghanistan should have provoked an extended discussion on the effectiveness, legitimacy, and immorality of those wars.
Instead, the discussion shifted from what secrets had been revealed to those who had revealed them. The debate switched to whether Manning was a psychologically confused traitor or not, and whether Julian Assange had unprotect sex or committed rape while in Sweden.
This time the conversation shifted quickly from the correct size and role of the U.S. national security state and its terrorist fighting efforts to the motivations and intents of Snowden, and whether he was an unsociable recluse or simply a dumb high school drop out.
Others, like David Simon, have been content to focus on the hypocrisy and hyperbole with which they believe many libertarians and liberals have responded to the leaks. Despite arguing that the size and scope of public surveillance is an important issue, this is not the debate that he and others are interested in having either.
Simon in particular does not just find the issue seemingly uninteresting, but is uniquely perturbed by the focus on hypotheticals rather than the particulars of the actual rules in place, and calls the sudden white outrage toward such policies the country’s “Nigger Wake-Up Call.” Those whose rights have so often gone unprotected have dealt with similar abuses on a local scale for decades. And because it’s for the greater good of the country, and the potential abuses now at least might potentially target everyone equally, he sees it as something of a civic duty to both allow and defend the NSA’s secret surveillance and data collection.
Here’s his position and what about it I take issue with.
***
When the Guardian first broke the story that the NSA was collecting metadata from American’s telephone calls, Simon called “bullshit” on the hyperbole and ignorance that greeted the faux-scandal. He stands by this critique even after several follow-up posts.
He argued that many in the MSM didn’t understand how NSA surveillance actually worked. The claims that, “the government was listening in to the secrets of 200 million Americans,” and that “something illegal had been discovered to the government’s shame” were both false, he maintained.
According to Simon, “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. But the legal and moral principles? Same old stuff.” Except that in this case the principles reflect the scale. Just because a majority of Americans might support collecting records from a pay phone in pursuit of drug dealers or violent criminals, doesn’t mean they would support collecting records from all of the phones, no matter who was using them. And just because something isn’t illegal, doesn’t mean that it shouldn’t be–that is after all why we have a legislature that continues to make laws as new situations arise and new opinions pass in and out of popularity.
For Simon it’s all about actual wiretaps. Until someone’s listening to an actual phone call (without a court order), the NSA stuff is all just smoke and mirrors. Raw data is not the same as actually listening in on phone calls. Only in the latter case must, “privacy rights must be seriously measured against the legitimate investigate needs of law enforcement,” and it’s only at that point that “the potential for authoritarian overreach becomes significant.” I assume Simon means legally. Because for anyone familiar with metadata, and its myriad potential applications, it hardly requires listening to the actual words spoken on a phone call for the “potential for authoritarian overreach” to become “significant.”
But this is a problem that runs rampant throughout Simon’s writing on the issue. Over and over again he makes empirical claims and value judgements that are left unsubstantiated. What is Simon counting as “significant” here? What are the “legitimate investigative needs of law enforcement,” and why should they only be measured against a right to not have a conversation spied on, rather than a right generally not to have any part of a digital communication or telecommunication spied on?
“The question,” according to Simon, “is not should the resulting data exist,” because it already “does,” and “forever will,” and “to a greater and greater extent.” Nor is it whether or not “law enforcement in the legitimate pursuit of criminal activity” should “pretend that such data does not exist.” (Note: just because the data exists doesn’t mean we should be any less vigilant about guarding it against misuse and abuse. Simon combines a sense of techno-inevitability with the naturalistic fallacy in presuming otherwise.)
For him the more fundamental question is as follows: “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.”
Baked into Simon’s phrasing is the assumption that as long as it’s for “legitimate public safety needs” the government should be allow to access the data that exists (note: there is still no clarification on what he means by “legitimate“). Again though this is the very issue which needs to be debated. What is the “legitimate” balance between giving law enforcement the tools they need to prevent harm from coming to their fellow citizens, and allowing their fellow citizens to lead private, anonymous lives wherein they won’t be spied on publicly or secretly?
Simon even admits that there may already be abuses, “As happens the case with all law enforcement capability, it will certainly happen at some point, if it hasn’t already. Any data asset that can be properly and legally invoked, can also be misused — particularly without careful oversight. But that of course has always been the case with electronic surveillance of any kind.” In addition, he also finds the FISA court as a tool for judicial oversight problematic, but decides that ultimately, whatever the problems associated with it, this kind of data collection will happen as long as the agencies it is available to are tasked with finding terrorists before they commit acts of terrorism. This could just as easily be an argument for not demanding that these agencies be tasked with doing so, but Simon doesn’t admit that possibility, implying instead that it’s our norms regarding privacy and the government’s access to our electronic communications that should change rather than the objectives and ethos which govern the U.S. national security state.
And then a thought experiment.
What if, considers Simon, “a phone number is identified overseas as being linked to terror activity.” One might just as easily wonder HOW this individual was linked to “terror activity” given the government’s penchant for bombing those it suspects of guilt instead of prosecuting them in a court of law.
“And say a computer could then run the suspect number through that data base and determine a pattern of communication between that overseas phone and several individuals in New York, or Boston, or Detroit.” And say the suspect thean became linked, incorrectly, to individuals with dark skin and strong Islamic views who had nevertheless committed no crimes, planned on committing no crimes, but were still detained and interrogated anyway?
“Would you want that connection to be made and made quickly?” Not if the connection were a tentative one made by the bureaucrats of an institution which is measured by the number of plots it foils, and the number of suspected terrorists it captures.
“Or do you want to leave law enforcement to begin trying to acquire the call history on that initial phone from overseas carriers who may or may not maintain detailed retroactive call data or be unwilling to even provide that data fully to American law enforcement or do so without revealing the investigative effort to the targets themselves?” If this is the only way to assure that various citizens won’t have their rights secretly trampled on, perhaps.
Next, Simon attempts to assuage the fears of “panicked libertarians” and “liberals” and “Obama-haters,” as well as the parent of a daughter who calls an STD clinic or a person involved in insider trading. According to Simon, these people shouldn’t be worried because the agencies spying on them will be diligent and thorough, and concerned with stopping the bad guys rather than incriminating the innocent ones.
He explains,
“When the government asks for something, it is notable to wonder what they are seeking and for what purpose. When they ask for everything, it is not for specific snooping or violations of civil rights, but rather a data base that is being maintained as an investigative tool.” But Simon, in keeping with his apparent aversion to linking his claims to the evidence that might support them, provides nothing to demonstrate the validity of this claim.
“But those planes really did hit those buildings. And that bomb did indeed blow up at the finish line of the Boston marathon. And we really are in a continuing, low-intensity, high-risk conflict with a diffuse, committed and ideologically-motivated enemy,” Simon continues. How do we know it’s continuing? That it’s high-risk? Or diffuse? Or that we have a singular, united, and ideologically committed enemy?
“We asked for this.” Who did? I sure as hell didn’t.
“We did so because we measured the reach and possible overreach of law enforcement against the risks of terrorism and made a conscious choice.” This isn’t something I chose. And this isn’t something that a functioning democracy can’t simply choose to now choose differently.
“I’m a bit amazed that the NSA and FBI have their shit together enough to be consistently doing what they should be doing with the vast big-data stream of electronic communication.” I am a bit amazed that Simon thinks either organization does in fact “have their shit together,” and has been “consistently doing what they should be doing.” Perhaps he is privy to privileged information though, in the absence of which the rest of us must accept what he and other says on faith alone.
“We want cake, we want to eat it, and we want to stay skinny and never puke up a thing.” Of course not. The real question though, and the one Simon fails to answer, is whether we should eat the cake or stay skinny, whether we should border on more privacy and more transparency, or less of both of those things in the hopes that those in power will secretly adhere to the rules previously laid out for them.
***
What’s more remarkable than Simon’s faith in the undemonstrated success of these counterterrorism policies is that he thinks the abuses will be any more egalitarian than the abuses committed by other institutions.
Surely it will be the poor, racially and ethnically marginalized that suffer the most under an ever expanding surveillance regime, just as they suffer more under nearly every other policy.
But most agitating of all is Simon’s continued emphasis on “we” and other fictitious groups as he berates selfish libertarians and overly skeptical liberals and the American population as a whole, for holding views and making arguments that he himself has assigned to them.
In subsequent posts, Simon elaborates on why he finds the arguments against an expanded regime of secret surveillance, whether technically legal or not, so hollow. He compares the acquisition of metadata to DWI checkpoints where police note the time, direction, license tags, and descriptions of those passing through. A more apt analogy would compare metadata collection to county where every intersection and street corner is a DWI checkpoint. Regardless of whether such a thing would be legal, it would certainly be overly authoritarian and intimidating–more like a police state (literally) than a free republic.
Nor is his argument that since all technology can be abused, and yet we still allow police to carry 9mms, convincing or accurate. I’ll know if a police officer mistakenly shoots me. I won’t know if some contractor is collecting my telecommunication meta data, emails, and web history and running it through an algorithm.
Rather, just as each tool presents unique benefits, as well as distinct drawbacks, each must be judged on its own, and on the merits. And while lawyers are free to debate the legality of the NSA’s current practices, and the safeguards in place to prevent a breach of citizen’s Fourth Amendment rights, the rest of us are free to debate them on the merits, and conclude for ourselves whether they SHOULD be legal in the first place. That’s the actual debate we need to be having–the fundamental one to use Simon’s construction.
And yet it seems to be the one most media pundits, politicians, and television writers are least interested in having.
Thank you Ethan. Excellent post!Report
What’s more remarkable than Simon’s faith in the undemonstrated success of these counterterrorism policies is that he thinks the abuses will be any more egalitarian than the abuses committed by any institution.
I believe this was Jason’s point, and Burt’s, in their initial posts on this subject here.
On the one hand, I understand Simon’s point about the wake up call. While I’ve known a lot of people on the left who’ve been upset about racial profiling, a level of scrutiny that goes way beyond collecting metadata, the level of outrage we’re now seeing in some circles because of revelations that data is being collected on everyone, including them, far outpaces any outrage they’ve shown in response to racial profiling. So it does seem a bit… if not hypocritical, then selective. “Oh, you mean they’re collecting data on me? Well, now I’m outraged!”
On the other hand, it seems to me that if racial profiling is wrong for reasons beyond simply that its being discriminatory — that is, if it’s also wrong because treating innocent people like criminals is wrong — then expanding it, even in a limited way (and I hope we can agree that collecting metadata is far less intrusive than, say, repeatedly stopping and frisking people for no reason other than that their skin is too dark or they’re in the wrong neighborhood) is also wrong. What’s more, the expansion of its coverage doesn’t imply, as you, Jason, and Burt note, the expansion of its abuse.Report
“What’s more remarkable than Simon’s faith in the undemonstrated success of these counterterrorism policies is that he thinks the abuses will be any more egalitarian than the abuses committed by any institution.”
Hmmmmmmmmm…………..faith in undemonstrated success………why do I think ‘War on Drugs’?Report
What’s more remarkable than Simon’s faith in the undemonstrated success of these counterterrorism policies is that he thinks the abuses will be any more egalitarian than the abuses committed by other institutions.
Surely it will be the poor, racially and ethnically marginalized that suffer the most under an ever expanding surveillance regime, just as they suffer more under nearly every other policy.
Simon’s point is that the big-data approach to law-enforcement is just as likely to lead to more egalitarian outcomes, and your vague reference to the disparate outcome nearly every other policy doesn’t really rebut this point. As Simon originally argued, the risks for abuse that you reference are already present in any law enforcement policy. But where PRISM-type programs differ is in replacing much of the biased human element with hypothesis-free data mining. In the scenario that Simon describes pre-PRISM, a detective would have to dig through the scraps of publicly available information on the suspect’s social circle to prioritize potential leads. How high is the likelihood that someone from a marginalized group – a recent immigrant, an Arabic sounding last name, attendance at a Mosque – will be unfairly targeted? I’m sure detectives working under pressure with limited evidence take this kind of profile-based shortcut all the time. With PRISM, on the other hand, all available social network information is analyzed for trends and compared against a massive database of benign individuals. Dumb profiling based on name or appearance won’t even factor in, and the content of the conversations will be weighed much more heavily than relatively benign indicators like ethnicity or religion or income. It is not obvious to me that the latter system introduces more bias, and quite likely that it does the opposite.Report
I think the crux of programs like PRISM falls to two questions:
A) Who has access to the database
B) How is the data accessed?
Limit access to LEO, and bar political access, and at least you can limit the potential abuses to a degree.
Construct a database that can only provide data when an algorithm pings to a threat, rather than one that can be scanned by name, ethnicity, etc – that way the database can not be used by someone with an axe to grind against an individual.Report
Exactly. Anonymizing this system would be a peace of cake. Heck, make it so the thing can only ping once you’ve gotten a warrant for the individual, forcing it to be a secondary information system. The problem is that even after Mr. Gach argues that each tool presents unique benefits and costs, he fails to consider the serious social benefits of such an automated system can provide, particularly to traditionally marginalized groups.
Not to get too deep into the psychoanalysis, but I think part of the problem is that if you asked various people the following question: “You’re in an airport screening line and are getting profiled for a “special” screening, would you rather the profiler be a random TSA agent who gets to see your passport or a soulless computer that gets to see your passport and your cellphone metadata?” you’d get a very different answer depending on who you ask. I’m quite sure my Sikh co-workers – who “randomly” get screened every time they fly – would pick the soulless computer, but they’re not the ones driving this conversation.Report
“I think the crux of programs like PRISM falls to two questions:
A) Who has access to the database”
I’m sorry, but that’s classified.
“B) How is the data accessed?”
I’m sorry, but that’s classified.
“Limit access to LEO, and bar political access, and at least you can limit the potential abuses to a degree.”
Access is limited to Cleared, Pure Americans with Pure Motives. Anybody who tells you otherwise is lying, and we have a 99% redacted document to prove it.Report
sadly, touche’Report
I think there’s a third, and that’s what data is being collected.
Does it, for instance, contain cell-phone pings to a cell tower, and chart travel via switching towers? Meta data can mean a lot of things. We were mislead about our bank records.
We were mislead about the privacy of overseas phone calls. Now, we’ve been mislead about the sum total of our communications via cellphone and internet. Because there is a very disturbing pattern of collecting as much as possible and 1) keeping the actions secret, and 2) lying about the actions.
This now spans two administrations, so I have to presume much of what we’ve witnessed is the culture of the natural security apparati.Report
“But where PRISM-type programs differ is in replacing much of the biased human element with hypothesis-free data mining. ”
First, any action taken by people will be filtered through people. It’s likely that various human parties will be tasked with sifting through the automated output, and deciding which things to follow up on, and how.
Second, people will program those algorithms. And adjust them.
Third, those algorithms will not necessarily start ‘unbiased’.
Fourth, the costs of false positives will be least when the victims have lower power, status and money. That will feed back into (1) and (3).
Fifth, this all assumes that the program will not be quite deliberately steered in the sort of directions that many criminal ‘justice’, ‘national security’ and police programs have ended up going.Report
Then I read stories like this, & I fall back to my “You can trust them any farther than you can throw a sponge underwater.”Report
Edit – can’t trust themReport
We need to have this debate … right , after 7 years of the decision secretly dictated .
Everybody’s changing the subject , secret laws , secret courts , secret decisions .
Means and methods of doing things you can’t talk about because they can’t release the details .
Not even possible to debate the limits of what can’t be mentioned . Its a joke thats going to boil down to blind obedience or blind scepticism
one hell of a way to run a countryReport
That’s why I’m for ending it. Full stop.
Any power someone has will eventually be abused. We see this all over the gov’t. The only way to prevent abuses is to eleminate the acess to the data.Report
This is the key point. All government programs will be abused–the question is whether the benefits outweigh the abuses.
I’m of the mind, for instance, that whatever abuses to social security disability, or TANF, the benefits are too great to get rid of the programs.
With counterterrorism surveillance though, I’m extremely skeptical (i.e. have no reason to believe) that that is the case. Until the NSA is able to show me proof of why I need them on that wall, I’m for getting them off of it before they, to use Simon’s analogy, accidentally shoot someone.Report
“This is the key point. All government programs will be abused–the question is whether the benefits outweigh the abuses.”
And what controls, follow-up, auditing, etc. are available. With these programs, the high-end guess would be ~1% of the controls, follow-up, auditing, etc. that other government programs get.Report
Solid post, Ethan. You’re killing it on this topic.Report
thanks!Report
Ethan, Here’s a link to an important article on the origins and development of the PRISM including the history of the NSA’s meta-data collection methods, and some of the legal questions surrounding it. I think it’s an important contribution to the overall debate, but of course, you be the judge.
NSA uses ‘terrorism’ to justify mass surveillance that started long before 9/11 and the Patriot Act.Report
Incidentally, Stillwater, I spent some time yesterday replying to your last comments on that other NSA thread, regarding theory of “speech acts,” only to discover at the moment of submission that comments had been closed (automatically, part of a 4-day rule on FP posts, I am given to understand).Report
Do you still have that comment? I’d love to read it. I checked last night for a response and was surprised to see comments closed. (Maybe there’s a new protocol in town?)
I doubt that a thread will arise where an in-depth inquiry into the logic and analysis of speech acts is appropriate. So unless you anticipate the League turning radically towards the Philosophical, here’s my email: whitesr {{at}} live {{dot}} com.Report
I’d love a discussion of speech acts. Hate speech, first amendment issues, and problems surrounding interpretation are big interests of mineReport
Maybe we can get Chris involved. I know he has views on this stuff. And Shazbot. Jaybird might (heh, of COURSE he does). Others. Maybe an off the cuff post?
If you don’t want to do that, CK, we’ll keep it tight. Just email me with it.Report
Do we want to do a comment rescue?Report
It’s a comment he wanted to submit to a closed post, so no comment rescue.
We’re discussing options. (Tho, now I feel bad about bringing it up before CK had a chance to weigh in.)Report
We could make it a Mindless Diversions guest post. Does anything blow up?Report
Sounds fun. I haven’t broken out my little green book in a while. Or the devil.Report
Who wrote the piece linked to by “the devil”? It’s certainly painful to read.Report
Derrida.Report
Thought so, but didn’t want to sound like a smart ass saying it.
I think you’ve referred to him as the Devil before, tho, yes? That’s prolly why I knew. Also, that weird use of the word “signifier”…Report
I don’t hate him, and I appreciate that essay. I called him the devil because I know he is widely hated among a lot of people here.Report
French devil.Report
It’s one of his more famous essays, at least in the English speaking world. It’s part of his debate with Searle, which led Searle to basically say he didn’t understand a word he said.Report
This must have directly preceded Searle’s book “The Construction of Social Reality”, yes? If so, it would explain his radical turn.Report
Tho, of course, if Searle doesn’t understand a word he’s saying based on arguments from another guy, then how do we know that that guy understands a word he’s saying? Didn’t Derrida write a book with the thesis that meanings are indeterminate (or something) and then put a line thru every sentence of the book to make his point? Or am I misremembering things?Report
Partially. He talks of something like indeterminacy, and that’s actually related to the topic of that essay, but no books completely struck through.
And Searle was pretty condescending. I think he saw Derrida as a charlatan.Report
I met Searle. He’s pretty condescending.Report
He’s also really fishing smart.Report
Yeah, Searle is worse than condescending, but right about a fair bit.
Derrida is nonsense 24/7.Report
I took a course from Searle at Berkeley. He’s really, really smart.Report
You can actually hear entire courses from Searle (and Dreyfus) via Berkeley’s free course webpage.Report
I generally think Austin is right about speech acts.
How is this relevant to the NSA or any political debate? (I’m not saying it isn’t relevant, just wondering.)Report
It isn’t. It’s the continuation of a conversation CK and I were having about the analysis of speech acts. VERY heavy stuff, Shazbot. I don’t know that a robot is capable of understanding it. But your welcome to participate if CK decides to post it even if your contributions will be considered less than human.Report
My contributions will be strings of symbols arranged in ways that follow your rules of syntax. But, my sentences will not have semantic meaning, no matter how much they appear to. You know, because I am just a damned robot, unlike you smelly apes with your “spark of the divine.”Report
So, you’ll be speaking something equivalent to functionally translated Chinese then. That’s good enough for this board.Report
Well, every sentence you are speaking is equivalent to something translated from Mandarin Chinese too.Report
Sure, but I’m not a robot bro. Big difference.
Look, all the Chinese Room (ahh Searle!, you crazy genius) shows is that syntax is necessary for language use. Not semantics. And since there is no syntax, the Chinese Room fails, as do all robots.
As the prophet of our time said, If a lion could speak we could not understand him.Report
Err, I meant, “If a robot could speak, we could not understand him”.
Dammit!!Report
“Sure, but I’m not a robot bro. Big difference.”
What reason do you have for saying that you’re not a robot? Maybe a human-looking Cylon, perhaps?
All I see is that you’re typing syntactically correct (for the most part) strings of symbols together that I see on my screen. I don’t see any semantics. Why do you think your sentences carry semantic meaning?Report
Also, I hope you were tryng to write, “I am not a robot, bro” instead of, “I am not a ‘robot bro'”
Nothing more irritating than a robot bro. We call them “robros.”Report
Sorry, y’all, that I couldn’t participate in and de
constructively divert the above colloquy on Searle and Derrida. Am thinking about how to continue the discussion if and when I can. Worse comes to better, I can always host it at my own blog, I dunno, sometime in the next days or weeks, unless of course the LOOG Powers that Be, Whoever They Are, don’t do the right thing in the meantime and give us a sub-blog dedicated to thispurpose. As for doing it up as a post or comment rescue or whatever, I’ve never been initiated into the secret handshakes and so on, so don’t know anything about that. IMO it would be worth doing, and as opaquely as possible, even if only to dismay Hanley.ReportEither way, CK. It’d probably be better here, since this is where we already are.
If not, I’ll come over to your place.Report
Well, as I said, Stillwater, I am not currently in a position to make anything happen here except by hijacking a thread somewhere, possibly in the shadow of a merciless 4-day thread-shutdown rule. As is typical for this “place,” unless you’re in the club, it’s a complete mystery how all such decisions on FP access, sub-blog privileges, etc., are made, or even whom to contact or how to do it. In fact, it’s such a deplorable example of non-transparency and non-accountability that I’m not sure I could justify giving it an implicit endorsement by authoring a post, which in the LOOG’s implicit class system is very different from being a mere commenter.Report
CK,
The reasoning for the shutdown rule is that, well, this place is administered by volunteers and it becomes a drain on our time and resources when threads spiral out of control. Threads that last more than four days do so at a rapid clip (the longer a thread goes, the more likely it is that it has devolved into insults or the repeating of previous points, but more acrimoniously and at a higher volume). A uniform standard, consistently applied, comes across more fair than 100,000 questions about why we shut down this thread but not that thread, and why we shut it down precisely when so-and-so got the last word.
I can understand your frustration. While perhaps an announcement would have been ideal, it changed a number of times until the right number of days to leave threads open was found.
I would not worry about baggage that comes with being a guest post author. We maintain a reasonably liberal policy in that regard. It isn’t an indication that we favor or disfavor someone. A couple months before being invited to be a contributor, I had a guest post proposal that was denied. On the other hand, relatively new commenters and people who rarely comment at all have been given the floor.Report
Thanks for the info. It’s just part of the general mystery, which apparently some people consider a positive, about who and what this site really is.Report