Kashmir Hill, writing for Forbes, points out that now might be a good time to revisit a speech given by the NSA's general counsel (Rajesh De) earlier this year (Feb. 27), in which he attempted to dispel some myths about the NSA's actions and operations. What's been revealed of the NSA's programs indicates these myths are much closer to the truth than the NSA would like to admit.
De's speech aims to portray the NSA as a good (if secretive) agency that plays by the rules, carefully overseen by a variety of entities. And to some extent it does "play by the rules," but only because the "rules" themselves are secret or have been altered, expanded and reinterpreted to allow the NSA's activities to declared "legal."
False Myth #1: NSA is a vacuum that indiscriminately sweeps up and stores global communications.
Rajash De says the NSA is limited by the law -- if the agency is not "affirmatively authorized" to take an action, it cannot do it. As with most of De's arguments, this presumes that the laws applied to the NSA are the same laws applied to other security and law enforcement agencies (or the average American, for that matter). What may appear to be illegal activity could actually be "authorized."
The problem is the secrecy surrounding the laws themselves. The administration has so far managed to prevent the secret interpretations
of existing applicable laws from being disclosed. As far as the public can tell, the NSA's actions look
illegal. The fact that they've been granted legality by specific and proprietary interpretations doesn't alter the public perception. Given what's been disclosed so far, there's no reason to believe the NSA doesn't sweep up as much global data as it can. The only effective limitation isn't the law, which is apparently quite malleable -- it's the logistics.
"[F]rom a mission perspective, it would be ineffective and inefficient... to simply collect and store as much information as possible, even absent any legal or policy restraints... Simply put, it would be neither feasible nor desirable to just drain the ocean of big data into a government pool of big data."
For all his discussion of laws, policies and authorization limitations, it seems the biggest deterrent is the amount of data itself. But with its new data center
and its non-targeted request for the metadata of millions of Verizon subscribers
seem to indicate the NSA is looking to get past this last hurdle. Of course, it may just be that the NSA doesn't have the manpower/processing power to harvest a ton of global data because it's already grabbing way too much data right here in the US
False Myth #2: NSA is spying on Americans and home and abroad with questionable or no legal basis.
The recent leaks (along with previous whistleblowing
) seem to indicate the NSA is spying
on Americans with "questionable or no legal basis." But it all depends on whether you consider the NSA's data grabs to be "spying" or an "invasion of privacy." Spying would be both, but much of what the NSA seems to be doing is more of the latter. De uses "spying" to keep the word "surveillance" out of the discussion. The NSA doesn't consider PRISM
or the Verizon data haul "spying," presumably because they're untargeted. But the public would (at the very least) consider it a privacy breach and a form of surveillance -- both of which would seem to be happening with "questionable or no legal basis."
It's not as if the apparatus isn't already in place for more "traditional" spying on American citizens. Whistleblower Ed Snowden puts it this way
"I, sitting at my desk, certainly had the authorities to wiretap anyone, from you, or your accountant, to a federal judge, to even the President if I had a personal email."
Rajash De attempts to deflate this "myth" by using language nearly identical to Director of National Intelligence James Clapper's defense of the NSA's actions
. De also
claims no Americans are being "targeted" and asserts the NSA is prevented from doing this by Section 702 of the FISA Amendments Act, which prohibits targeting US citizens, either at home or abroad. Again, the key word is "targeting." Grabbing the metadata on millions of phone calls certainly can't be construed as "targeting," which keeps the NSA from violating this provision of the law.
But back to the myth itself -- and De's wording. By limiting its demands to data, the NSA can still locate and track American citizens without having to worry about violating any applicable policies, and can make the claim that it isn't "targeting" or "spying" on American citizens or capturing "communications." (Even if the President is claiming otherwise
in defense of the NSA's actions...)
But that's just what we know. Snowden's view from the inside (along with previous whistleblowers) indicates that such spying -- and capturing of communications
-- does indeed occur, contrary to De's assertion. Unfortunately, it will probably take the leak of supporting documentation to fully dispute De's claims -- something that looks to be much more likely an occurrence than anyone would have believed a week or two ago.
False Myth #3: NSA operates in the shadows free from external scrutiny or any true accountability.
De tries to debunk this, but this isn't anywhere close to being a myth, no matter how it's framed. It's the sad reality. While it's true there are many oversight committees and "multiple stakeholders" the NSA must answer to (Dept. of Defense, Director of National Intelligence, Dept. of Justice, the White House, legislators and the FISC), it only means something if the entities aren't, for the most part, completely aligned with the NSA's desires.
The NSA doesn't face a real challenge from any of these. Congress openly admits this surveillance has gone on for years
with its active approval. President Obama signed off on a variety of extensions and expansions
of Bush-era surveillance policies. The FISA court has proven to be nothing but a rubber stamp in robes
, having approved all
domestic surveillance requests for two years running (more than 3,300 requests). The government was set up as a system of checks and balances but when it comes to the nation's "security," there hasn't been any significant pushback in years.
To make matters worse, the NSA has repeatedly lied to Congress about its activities
. Congress can say it's been informed, but if it's being provided with limited (or false) information, it's in no better shape than the constituents it's supposed to be protecting from these abuses.
At best, these "myths" are only misleadingly-worded versions of the truth. De's careful articulation weaves around the subject matter and allows for plausible deniability. The secrecy of the agency allows it to make claims that can't be easily denied. The willing complicity of our government makes it easy for the NSA to expand its surveillance activities without fear of reprisal. Given what we know now, it's safe to speculate the reality of the situation is even worse than these so-called "myths" indicate. And until the public is willing to push back, our representatives (for the most part
) are more than willing to let the NSA turn the US into a surveillance state -- all in the name of "security."