Dianne Feinstein Deploys All The 'Intelligence' Cliches In Op-Ed Defending Metadata Program

from the needs-new-talking-points dept

Dianne Feinstein is reaching out to the American public (at least those that read USA Today) in hopes of gathering support for the NSA’s metadata collection. (Maybe she feels she guilty after inadvertently damaging its chances at staying legal…) If you’ve heard anything from Feinstein over the past few months, you’ve heard these arguments. In fact, if you’ve heard anything from any of the NSA’s defenders, including Gen. Alexander himself, you’ve heard these arguments.

Her editorial basically checks every box on the list of Section 215isms.


The NSA call-records program is legal…


… and subject to extensive congressional and judicial oversight.

These words are meant to be comforting, showing that the NSA isn’t doing anything illegal, especially since any oversight would certainly prohibit that, right? Except that the legality of the program depends on secret interpretations and a very loose reading of the Third Party Doctrine. As for the oversight? The FISA court has been (rightfully) referred to as a “rubber stamp,” and the oversight is hampered by the underhanded tactics deployed by intelligence committee heads.

So, while the sentence may be technically true, the words being used don’t mean what most Americans would assume them to mean.


Above all, the program has been effective in helping to prevent terrorist plots against the U.S. and our allies.

Once again, there’s very little proof that the Section 215 program has had any effect. At one point, defenders were claiming over 50 plots had been prevented by this program. At the latest count, it’s been pared down to two. And those two are still “maybes.”

The most recent narrative push is that this program would have prevented the 9/11 attacks, because of a San Diego phone number being contacted by one of the hijackers. But this claim should be taken with a server full of salt because even with the program, the NSA is having trouble finding any needles scattered amongst all the hay. It does well connecting the dots after attacks have occurred, but Americans shouldn’t have to sacrifice liberty for mop-up security.


The call-records program is not surveillance. It does not collect the content of any communication, nor do the records include names or locations.

Feinstein cites the Supreme Court’s decision that business records aren’t protected by the Fourth Amendment. What she glosses over is the fact that these “unprotected” records can paint a very vivid picture of telco customers, many of whom would be very surprised at how little is left up to the imagination by metadata.


This program helps “connect the dots” — the main failure of our intelligence before 9/11.

And continues to be a failure more than a decade later! Feinstein quotes two intelligence leaders as claiming an untargeted metadata haul would have prevented the 9/11 attacks. Considering the fact that the NSA can only claim two “maybes” in its decade-plus of having access to these records, those claims seem to be completely faith-based.

Feinstein specifically mentions hijacker Khalid al-Mihdhar, who supposedly would have been discovered here in the US pre-9/11 had the agencies been able to collect vast amounts of metadata. Unfortunately, the truth is that the CIA had plenty of info on al-Mihdhar’s movements in other countries as it had been tracking his movements for two years. But when it lost him in 2000, it did nothing proactive, like place him on watch list in case he returned to the US. Evidence exists that various call tracing programs built at the behest of the NSA and DEA were in place well before 2001, and none of those helped track down a person well known to the CIA.


The overwhelming majority of records are never reviewed before being destroyed, but it is necessary for the NSA to obtain “the haystack” of records in order to find the terrorist “needle.”

One paragraph after “connecting the dots” (which the NSA can’t seem to do proactively), Feinstein deploys the other data-harvesting cliche. The NSA isn’t having much luck with its needle-finding technology either and recently, its haystacks have been bursting into flames. So, this is a non-starter.


To be effective, the NSA must be able to conduct these queries quickly, without regard to which phone carrier a terrorist or conspirator uses. And the records must be available for a few years — longer than phone companies need them for billing purposes.

Let me get this straight: the NSA needs records right away but also wants to keep them indefinitely. The latter part plays to the agency’s strength — the deployment of hindsight-guided, dot-connection technology. Its catlike reflexes are generally underwhelming when it comes to preventative efforts, however.


Since its inception, this program has played a role in stopping roughly a dozen terror plots and identifying terrorism supporters in the U.S.

This number is also false, but it’s one that’s being used to salvage the upper end claim of “54.” The “roughly a dozen” refers to thirteen of those 54 that have a “terrorism nexus” in the US. Feinstein has built a list of nearly 100 terrorism-related arrests, “some” of which have been “thwarted” by the Section 215 program. A perusal of the list shows that many of these were thwarted through old-fashioned sting operations, with a handful of these being plots that FBI agents orchestrated in their entirety. Section 215 is completely unnecessary if you’re mainly interested in “foiling” your own plots.

So, with great vagueness, Feinstein makes these assertions and wholly expects USA Today readers to buy the narrative. The US needs a program that allows for untargeted data collection of American phone records just because sometime it might possibly prevent something. It hasn’t yet — not conclusively — but there’s always a chance it will, given the indefinite, unchallenged future Sen. Feinstein is attempting to ensure.

To its credit, USA Today has run its own editorial in response to Feinstein’s article. The response demands that the program prove itself, something it has failed to do over the years. Its lack of proven worth almost saw it closed down previously and the renewed defense of the program in the wake of the Snowden leaks has been less than inspiring. USA Today also calls out Feinstein’s wishful “could have prevented 9/11” defense, pointing out that it wasn’t a lack of data that was the problem, but rather the failure of intelligence agencies to share the data they did have. The editorial closes out with this paragraph, which nods to Ben Franklin’s famous quote.

Choosing between privacy rights and security from terrorism is difficult. But before Americans are forced to make that choice, the government ought to demonstrate that this intrusive program has extraordinary value. So far, the administration hasn’t even come close.

The NSA’s defenders are making minimal concessions to transparency, but it’s become obvious that the agency does its “best” work in complete darkness. Having its methods dragged out into the sunlight demonstrates just how invasive they are — and how little they accomplish.

Filed Under: , , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Dianne Feinstein Deploys All The 'Intelligence' Cliches In Op-Ed Defending Metadata Program”

Subscribe: RSS Leave a comment
Ninja (profile) says:

Ok, we can play that too regarding this mass surveillance.

[x] The citizens don’t approve.
[x] The Constitution doesn’t allow.
[x] The world doesn’t like it.
[x] It is not effective in preventing anything before happening.
[x] After it happens the citizens collective effort is what helps catching suspects and providing relief.
[x] Taxpayer money that could be used to help relief efforts or improve other areas is spent in this.
[x] There is no oversight. Or the ones responsible for it simply aren’t doing their jobs.
[x] Feinstein lives in denial.

Nice, can we add more?

Anonymous Coward says:

Re: Re:

[x] I am unwilling to trade one ounce of privacy for any amount of security.
[x] There is no acceptable balance.
[x] I will vote against my party if that is what it takes to end these programs.
[x] I will vote for people I don’t agree with on anything other than this issue in order to end these programs.
[x] It is my firm belief that members of both the NSA and of congress should go to prison over these programs.

Ben (user link) says:

Re: Feinstein's utter BS

The ONLY reason for this is that the US is planning a NAZI(esq) slam-down on the American people, complete with (concentration camps, see FEMA camps), confiscation of privately held food reserves, firearms, mass executions (see recent purchases of ammo by Homeland Security & coffins by FEMA), try to think about Germany in the 1930’s while you watch gossip TV on your Iphone!

Uriel-238 (profile) says:

Re: Re: Slouching towards Auschwitz

I think it is far scarier and more likely a possibility that we are blindly stumbling towards Third-Reich-style fascism. (While the FEMA camps have been debunked, we do still have our amazing / disturbing prison stats and grossly impacted penal sites).

Keep in mind that neither did Hitler’s regime willfully march into Nuremberg-Law territory, but the prejudices were already there. The entire western world was ablaze with antisemitism reaching deep into the US as well as throughout Europe, and Post WWI Germany was desperate for easy, understandable scapegoats for their many woes.

There are similar problems here in the US. We’re already in wars we cannot win, only they are wars we don’t intend to win, but fight to give purpose and profits to the industries that drive them. The more and more we commoners are bled for the gains of the few, the more we’re going to be desperate for easy answers and will be willing to commit to despicable tasks in the promise of change.

And then we’ll march into Poland, because that’s what everyone does.

As of this posting I have not received a US National Security Letter or any classified gag order from an agent of the United States
Encrypted with Morbius-Cochrane Perfect Steganographic Codec 1.2.001
Tuesday, October 22, 2013 11:45:29 AM
trailer bullfight sow kiosk user experience whiteboard harp stage

Anonymous Coward says:

Re: Re:

A few of these points are a bit premature.

[x] It is not effective in preventing anything before happening.

This one is dubious in both directions. There is an additional argument for keeping the program saying that it is still too young to have really cut its teeth. That a program hasn’t been the primary source of solving a case in 10 years doesn’t necessarily mean it is not valuable. Hiding the real effects behind the secrecy wall is a credibility problem. Especially when the initial numbers were ridiculously inflated. To me that falls back on the political committees and their chairmen first and foremost for not doing enough oversight to be able to find a relevant number to argue from.

[x] After it happens the citizens collective effort is what helps catching suspects and providing relief.

That seems like an excessively unclear statement. Oldfashioned police-work seems like the best technique to help catch suspects and while it may involve citizen efforts the techniques are much broader and better than pure tips and statements. It still doesn’t lend any credibility to the collection programs, though.

Anonymous Coward says:

Re: Re: Re:

“[x] After it happens the citizens collective effort is what helps catching suspects and providing relief.

That seems like an excessively unclear statement. Oldfashioned police-work seems like the best technique to help catch suspects and while it may involve citizen efforts the techniques are much broader and better than pure tips and statements. It still doesn’t lend any credibility to the collection programs, though.”

That statement was in reference to the Boston marathon bombing. The “oldfashioned police-work” locked down Boston and couldn’t find the bomber for 3 days. However, less than 2 hours after the ban was released, a random citizen found the suspect hiding in his boat out front.

There are other cases too where suspects go at large from the cops for days/weeks, then a “wanted” poster is displayed to the public and the person is found and arrested in matters of hours.

In other words, everyday citizens and their collective effort are doing better (in specific cases) of finding wanted criminals. (We’re a bigger network so that should be easy to understand)

That One Guy (profile) says:

Re: Re: Re:

There is an additional argument for keeping the program saying that it is still too young to have really cut its teeth.

Thing is, that logic, that of keeping a program around just in case it might turn out to be useful after all later, only really works if there are no downsides to keeping the program up, something demonstrably not true with the NSA’s programs.

Not only have their defenders had to flat out lie, to hide the fact that they’ve been pretty much completely useless and a massive waste of money, but the ‘side-effects’ of the programs are pretty huge, including such things as:

Massive violations of the constitution, due to their insanely overreaching spying into innocent peoples’ communications/data…

Making a mockery of the justice system to enable and justify their actions, by setting up secret courts to rule on secret interpretations of secret laws, and lying about the presence of oversight…

Weakening electronic and internet security, thereby making things even easier for the very people they are supposed to be stopping

Severely damaging the relations of other countries with the US, and utterly destroying any high ground or credibility when the US tries to call out another country for their intrusive surveillance of their citizens or attempts at controlling the internet in those countries…

Harm to the economy, as companies either move out of the US, in an attempt to avoid US spying, or curtail their involvement with US companies/customers for the same reasons…

I could probably come up with numerous other example of the harm the NSA’s activities have caused, but hopefully the point is clear, keeping a program/set of programs in place ‘just in case they help later on’ is far, far outweighed by the downsides of what they are doing now, if, like in this case, the downsides so vastly outnumber the (possible) upsides.

nasch (profile) says:

Re: Re: Re:

That a program hasn’t been the primary source of solving a case in 10 years doesn’t necessarily mean it is not valuable.

I think 10 years is plenty of time. Absent any credible, objective evidence that it’s going to start producing something specific by a specific time in the future, if a program hasn’t been effective after 10 years, it should be thoroughly reformed or scrapped entirely.

Anonymous Coward says:

Re: Hmmmm.....

That and you can’t take the data literally or else it doesn’t make sense*. You have to “interpret” it.

It can be dangerous if you take things too literally. For example, leaking the details of illegal and/or questionable activities made by the government or certain key figures could be misinterpreted as a patriotic whistle-blowing, when in reality, it is actually treason.

* From the point of view of those that believe in that quackery, anyway.

Anonymous Coward says:

The overwhelming majority of records are never reviewed before being destroyed, but it is necessary for the NSA to obtain “the haystack” of records in order to find the terrorist “needle.”

All these records are temptation for other governments and criminals, and they can likely get an agent into NSA or one of its contractors.
Allow a tyrant into a position og power and these records become useful in finding potential opposition. The possible tyrants include NSA/CIA senior personal. Just think what J. Edgar Hoover could have done with these records.

Anonymous Coward says:

It works!

Sure I threw practically every single person in jail my first year in office as part of my tough on crime initiative, dubbed ‘throw em all in jail’ by my opponents, but it worked! All we had to do was throw everyone in jail who looked likely to break the law before they could break the law!

Crime has dropped down to nearly zero thanks to my successful ‘throw em all in jail before they can break the law’ initiative. That’s why it would be a huge mistake for us to change course now and ditch my throw em all in jail initiative and let them all out of prison, you don’t want more criminals on the street now do you?

Anonymous Coward says:

“The US needs a program that allows for untargeted data collection of American phone records just because sometime it might possibly prevent something.”
And that’s the scary part, because who knows what kind of info they might need and for what purpose…oh, that guy just talked bad about us, lets check the logs and see what we can hold against him…

Transmitte (profile) says:

These are what is known as “PLEASE PLEASE PLEASE DON’T TAKE AWAY MY POSITION OF POWER AND MONEY” fits that Diane is currently having on a very public stage.

That also brings to mind the fable of the boy(or idiot politician) that cried wolf too many times. She must be used to gambling and losing a lot.

Time for her, Clapp-on,Clapper-off and Alexikov the Kollector to be tied to a hug rock and sent off into a long deep interstellar orbit.

Rikuo (profile) says:

I was going through Wikipedia the other day for funzies and I looked up Martin Luther King Jr. I was fascinated by the section where it talked about the FBI tapping his phones and trying to dig up as much dirt on him as possible, in order to blackmail him (in particular, extramarital liaisons).
This is what has many people concerned and to be frank, downright terrified. The next MLK, the next person to enact great positive change in our society, could be prevented by intelligence agencies having all this information about him, information that could be used to destroy him/her before they do what they could do.

The Singin' Jewboy says:

Re: Target: MLK

Sadly, ridding ourselves of our current load (and by load, I mean as one might find in a garment worn by the very young) of dragnet surveillance will not help the next MLK, because for the next MLK to be the next MLK he will need to be know to large numbers of people and not by some stupid alias like The Singin’ Jewboy.

Anonymous Coward says:

It will end in a dictatorship, because you’re letting the NSA spy on their political masters and every future political candidate.

Obama has killed 5 Americans with drones, Boston bombers killed 3. The biggest threat you face is collapse into a military dictatorship. FFS, the NSA did something illegal and nobody is big enough to tackle it. The leader doesn’t run the country, the military does! The top brass of the CIA and NSA weren’t the ones kept in the dark, that was Congress and the Senate! One runs the other, one is running the show and one of them is *supposed* to be running the show.

Discard the hay and the haystack is a lot smaller. So why exactly are you keeping data on people who have done nothing wrong?

Not legal, was kept secret from the courts to prevent a proper challenge

Connect the dots, CIA trained the terrorist group the first place. Dictators needs an ‘enemy’ to justify dictatorships. Syria uses Israel. Cuba uses the US, etc.

Time is of the essence? They tried the ‘major attack in August thing already’ I think she hoped it would somehow go away, if they could keep it suppressed for a month.

Metadata stops terrorism. Surprisingly my phone calls to my sons don’t stop terrorism.

Then there’s the data. I can see NSA gets the keys from the Lavabit leak, so they get the content via Bullrun, even if Feinstein isn’t saying so, or doesn’t know it.

A data center the size of the one in Utah isn’t holding just ‘meta data’, its holding the audio of phone calls, emails, photos the lot.

I wonder what they have on Feinstein? She seems to want to go down with the SS General Alexander.

Joe HovaH says:

Re: Dictator

If we did become a dictatorship, dontcha think it would be the neatest one EVER? Look at all the cool shit that just the military has. Their research on non-lethal weaponry will really pay off in a dictatorship. Aren’t you curious as to what being shot with a barf gun would feel like. Not only that, the dick could live on an aircraft carrier called – you guessed it!
They could shut down all of the general aviation airports and use ’em for drones. They wouldn’t need to spend money maintaining the road because no one would be allowed to go anywhere. You get the idea…

Anonymous Coward says:

Lets see, we’ve had three encrypted email services stop doing that to prevent intrusion, we’ve Brazil threatening to lay a new internet to keep spying out, the Germans are raising cane over spying, the French are doing the same, the EU countries are considering dropping out of data sharing programs with the US, people in other parts of the world are seeking new businesses that aren’t based in the US to prevent what they have known, several places have claimed corporate and industrial spying, which has nothing to do with terrorism, and people in the US apparently have no need of privacy despite being guaranteed that in the Constitution.

You can claim your actions are legal, right up to the time the law is declared illegal. Courts do that you know. It’s such a concern to the administration, security branches, and the DOJ, that they are constantly claiming National Security interests to prevent it from showing up in court. They would not be doing that unless they knew they are on very shaky ground.

I suggest all these congress critters get their stuff together. The American people are getting highly teed with those in Washington and are now considering that the best action might be to separate those politicians from their jobs.

Anonymous Coward says:

It's about saving lives?

So the Government goes on about saving American lives (that’s the whole idea of the NSA programs, right?). So what about closing the NSA & spending the money on health care this would actually save American lives (probably more than than having a 9/11 incident every year).

I have a suspicion that it’s not about saving lives at all but keeping an eye on any potential threat from the American people themselves since the internet provides the ideal rallying method.

I have never trusted the American Government since they supported the IRA in their bombing campaign in the UK in the 80s – talk about two faced. Now it’s happened ONCE on American soil all hell breaks loose & the American people have no civil liberties.

Jasmine Charter (user link) says:

She is the reasons

Idiot’s like Dianne Feinstein are the reason why there should be term limits on both Houses of Congress. She is clearly drunk on power and deluded with delusions of grandeur.

It’s illegal. Plain and simple. It’s unconstitutional. Plain and simple.

If our founding fathers knew about it, they’d be throwing Dianne Feinstein into the Boston Harbor, tied to boxes of tea. In their wildest dreams, they would never have imagined a people who would put up with this type of government abuse, having just fought a bloody war for liberty and freedom.

Rapnel (profile) says:

Re: She is the reasons

I’m a fan of term limits. And of campaign finance reform and I’m also a fan of a unilateral executive bent at the knee.

.. as we continue down the road of inadequate representation our soldiers have taken on the role of mercenaries and our police are militarily endowed and posse comitatus has been overrun by a digitally armed military authorized by secret law and assisted, in no small part, by Congressional Committees WHOSE MEMBER LEADERSHIP ENABLES THESE ACTIONS IN DIRECT CONTRADICTION TO THEIR STATED DUTIES.

This one should be bankrupt and incarcerated.

Anonymous Coward says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Guess she is no constitutional scholar.
4 to 1 she gets re-elected.

Leave a Reply to Max Cancel reply

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...