Circling the Drain in the NSA Surveillance Debate

(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.