Marcy Wheeler's Favorite Techdirt Posts Of The Week
from the on-the-civil-liberties-beat dept
It’s rather intimidating doing Techdirt’s Favorites of the Week just two weeks after Jennifer Hoelzer’s much-read favorites post, as that broke new ground on the NSA’s efforts to obscure how it spies on Americans. But seeing as how that’s what I’ve been neck deep in myself — covering civil liberties at emptywheel.net — there’ll certainly be a lot of continuity. Because the stories of the week still focus on NSA’s inability to offer credible answers about its surveillance programs.
Consider the empty reassurances NSA Director Keith Alexander gave to Stanford Professor Jennifer Granick about the NSA’s surveillance reported by Techdirt here. Roughly three weeks ago, Alexander assured her she’d feel better about the Section 215 phone dragnet once she saw the Primary Order. But then earlier this week, James Clapper’s office finally released the October 3, 2011 FISC opinion on Section 702 that not only revealed the NSA was collecting and using up to 56,000 US personal communications a year in violation of the Fourth Amendment, but that,
Contrary to the government’s repeated assurances, NSA had been routinely running queries of the metadata using querying terms that did not meet the required standard for querying. The Court concluded that this requirement has been “so frequently and systemically violated that it can fairly be said that this critical element of the overall … regime has never functioned effectively.”
That ruling was released as part of ODNI’s roll-out of … a Tumblr! Somehow, none of the people with the word “intelligence” in their titles realized the URL “http://icontherecord.tumblr.com/” invites jokes about the Intelligence Community as the “I Con” community.
The “I Cons” spent most of their rollout conference call refusing to answer three different questions about a WSJ report published the night before, which described how between the telecoms — which do a first scan on data — and the NSA, they have “the capacity to reach roughly 75% of all U.S. Internet traffic in the hunt for foreign intelligence.” But then by the end of the day, they had released a sheet purporting to provide the “facts” but instead playing on the words “sift through and have unfettered access to” in an attempt to distract from their underlying confirmation that in fact the WSJ’s reporting was correct.
Meanwhile, we’ve had conflicting reports about how much abuse there really still is. By the end of the week, even Bloomberg was reporting what Techdirt did earlier: that there are, in fact, intentional abuses. Bloomberg appears to base that claim on a still-classified (and unleaked) “new report by the NSA’s inspector general.” That report says there are “an average of one case per year over 10 years of intentionally inappropriate actions by people with access to the NSA’s vast electronic surveillance systems.” But the audit report released last week actually shows that 9 to 20% of violations are “lack of due diligence” — which means the person didn’t follow the rules; that probably works out to about 300 deliberate rule violations annually, not one. As Barton Gellman has explained,
If they are performing the mission that the NSA wants them to perform, and nevertheless overstep their legal authority, make unauthorized interceptions or searches or retentions or sharing of secret information, that is not abuse.
But these serious issues were not without comic relief. Wednesday night we started getting reports that Obama’s (or James Clapper’s?) “outsider” “independent” review panel was actually going to be staffed by four people with White House or Intelligence Community backgrounds: former White House homeland security czar Richard Clarke, the very recently retired CIA Deputy Director Mike Morell, former White House adviser Peter Swire, and former White House regulatory czar Cass Sunstein. While I’m happy Swire’s on the list, not only did they not appoint a single technologist to address an issue that is all about technology, but Sunstein’s appointment seems designed primarily to make us all believe the NSA’s repeated lies.