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NSA's Novel Claim: Our Systems Are Too Complex To Obey the Law

Posted by timothy on from the complex-simple-same-thing dept.

Reader Bruce66423 (1678196) points out skeptical-sounding coverage at the Washington Post of the NSA's claim that it can't hold onto information it collects about users' online activity long enough for it to be useful as evidence in lawsuits about the very practice of that collection. From the article: 'The agency is facing a slew of lawsuits over its surveillance programs, many launched after former NSA contractor Edward Snowden leaked information on the agency's efforts last year. One suit that pre-dates the Snowden leaks, Jewel v. NSA, challenges the constitutionality of programs that the suit allege collect information about Americans' telephone and Internet activities. In a hearing Friday, U.S. District for the Northern District of California Judge Jeffrey S. White reversed an emergency order he had issued earlier the same week barring the government from destroying data that the Electronic Frontier Foundation had asked be preserved for that case. The data is collected under Section 702 of the Amendments Act to the Foreign Intelligence Surveillance Act. But the NSA argued that holding onto the data would be too burdensome. "A requirement to preserve all data acquired under section 702 presents significant operational problems, only one of which is that the NSA may have to shut down all systems and databases that contain Section 702 information," wrote NSA Deputy Director Richard Ledgett in a court filing submitted to the court. The complexity of the NSA systems meant preservation efforts might not work, he argued, but would have "an immediate, specific, and harmful impact on the national security of the United States.' Adds Bruce66423: "This of course implies that they have no backup system — or at least that the backup are not held for long."

25 of 245 comments (clear)

  1. Too Big to Be Indicted... by mbone · · Score: 4, Funny

    The computer version.

    1. Re:Too Big to Be Indicted... by B33rNinj4 · · Score: 4, Insightful

      This is pretty much what will happen. The precedent was set with the banks and auto industry. I don't see why the NSA can't use the same argument.

    2. Re:Too Big to Be Indicted... by TaoPhoenix · · Score: 5, Interesting

      This argument has a bit of a different feel to it though.

      Up till now for a decade the agencies just invoke "we're scary and secretive, we don't need to follow your puny little laws because of National Security but we need a billion dollars in next year's budget to build more systems to hold data forever and ever".

      And you can bet they cherry pick their data so that they have ten years worth of people's email and Slashdot posts, but suddenly when a lawsuit comes along, suddenly that data vanishes. But then it becomes vital to an investigation! "Oh look, we found it again!"

      --
      My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
    3. Re:Too Big to Be Indicted... by GameboyRMH · · Score: 4, Insightful

      We can call this The NSA Defense (our systems are too complex for the law), and the inverse of it is The Amazon Defense (the law is too complex for our systems).

      --
      "When information is power, privacy is freedom" - Jah-Wren Ryel
    4. Re:Too Big to Be Indicted... by meta-monkey · · Score: 4, Insightful

      Credit unions.

      --
      We don't have a state-run media we have a media-run state.
    5. Re:Too Big to Be Indicted... by mi · · Score: 4, Insightful

      Yes, "just" stop using them [banks]. Like we can "just" stop voting in all these rubbish politicians.

      Unlike politicians, who impose themselves even upon those, who voted against them, banks have no power over you if you don't use them. You don't have to convince other people to stop using banks — just stop doing it yourself and you'll be free from them...

      Most people can't stop doing business with them because they are already in debt

      Nobody forces people into the debt. They take it voluntarily and are genuinely happy, when their applications are approved. Without banks, you'd have to save money for 10 years before buying a house. With banks, you can move-in right away and pay off in 15 years. Loans are a service, that banks provide to willing customers.

      Banks, on top of providing essentially services, have built a money sucking machine

      I'm not aware of this "money sucking machine". Could you, please, elaborate?

      The only way to address this, without plunging the economy into chaos, is for the government to step in and untangle it

      Just what is it, that you'd like to see "untangled"?

      --
      In Soviet Washington the swamp drains you.
    6. Re:Too Big to Be Indicted... by TubeSteak · · Score: 5, Informative

      Unlike politicians, who impose themselves even upon those, who voted against them, banks have no power over you if you don't use them. You don't have to convince other people to stop using banks â" just stop doing it yourself and you'll be free from them...

      Uhhhh... The global recession puts the lie to your notion that not doing business with banks means I'm free of their ill effects.

      Nobody forces people into the debt. They take it voluntarily and are genuinely happy, when their applications are approved. Without banks, you'd have to save money for 10 years before buying a house. With banks, you can move-in right away and pay off in 15 years. Loans are a service, that banks provide to willing customers.

      During the mortgage bubble, banks were doing several things
      1. Forging a higher stated income onto loan documents so they could lend more money
      2. Giving loans to people that they knew would not be able to afford it (NINA/NINJA loans)
      3. Offering minorities ARM loans or loans with much higher interest rates than they would offer to white borrowers with the same credit score.

      Blaming the borrower ignores the mountains of evidence showing wildly illegal, fraudulent, and outright deceptive behavior by the loan industry.
      If you don't know this stuff, you must be willfully ignoring the facts as they've been reported.
      Even Fox News has been reporting on it.

      --
      [Fuck Beta]
      o0t!
  2. Fine ... by gstoddart · · Score: 5, Insightful

    If you can't have your data available to demonstrate what you're doing it lawful, and you are going to delete it, then only reasonable conclusion is what you are doing cannot be proven lawful.

    Therefore, the program is not lawful, and you need to stop.

    Problem solved.

    This amounts to "your honor, we collect so damned much information we couldn't possibly hold onto it long enough to be subject to legal oversight. Trust us."

    What crap.

    --
    Lost at C:>. Found at C.
    1. Re:Fine ... by oodaloop · · Score: 5, Informative

      I imagine the problem is that these databases only hold collected data for a short period of time, say 30 or 90 days. The data scraped is massive, so it is constantly deleting old data to make way for more. IAA Intelligence Analyst, and I know of some imagery databases, for example, that only hold the last 30 days of imagery. If you forced them to hold all of it for years, it would mean increasing server space by orders of magnitude.

      --
      Tic-Tac-Toe, Global Thermonuclear War, and relationships all have the same winning move.
    2. Re:Fine ... by gstoddart · · Score: 5, Informative

      So, basically, your saying that they should just expect everybody to simply trust that what they're doing is entirely legal? Because the logistics of actually proving this is so difficult they can't do it?

      I say horseshit to that.

      We know the data they scrape is massive. What we don't know is that they're complying with the law in order to do it.

      And I fail to see why the benefit of the doubt should be given in this case.

      Sorry, but it's "trust, but verify", and if you can't verify, you can't bloody well trust. The whole point of these lawsuits is that they likely go beyond the scope of their legal mandate. Saying you couldn't possibly be bothered to hold onto the evidence the court has demanded is just too damned bad.

      --
      Lost at C:>. Found at C.
    3. Re:Fine ... by bigpat · · Score: 4, Insightful

      Sarcasm aside I think you make an important point... Between the “state secrets” privilege and the apparent willingness of the NSA to engage in a wholesale violation of the US Constitution and lie to congress and the courts I seriously doubt it would be remotely possible for a court to narrowly "rule on the facts" of the particular case. Rather courts are going to have to rule on the law and the probability that the NSA is violating individual liberties and then issue injunctions which give the government and the NSA and US government future instructions that the 4th amendment applies to their surveillance activities in the US despite whatever the Patriot Act might be interpreted to mean... meaning the courts will have to issue rulings based on what is permissible rather than issuing narrow injunctions against particular acts.

      So for instance the court should simply rule that for the NSA to force companies to hand over business records including communications logs and the like that they need a warrant that complies with the 4th amendment and is issued: "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"

    4. Re:Fine ... by JWW · · Score: 5, Insightful

      I totally get that their systems very likely need to purge inconsequential data to remain effective. However, if the court forced a private company to retain data under a court order, it wouldn't care one wit about whether that was feasible within the system or not. If the private company did not comply, their officers would be held in contempt.

      The NSA should not get special treatment in this case.

    5. Re:Fine ... by oh_my_080980980 · · Score: 4, Informative

      Really? That's not what the NSA was instructed to do. The NSA was instructed to hold *some* information that was involved in a court case. They were not forced to hold it for years nor were they forced to hold everything. In fact when the NSA was asked to do so they did not say they couldn't do it. Instead they said they didn't think the hold order applied to the information they deleted.

      Please stick to the topic on hand and not make up a scenario that did not happen.

    6. Re:Fine ... by Anonymous Coward · · Score: 3, Insightful

      Well, if I design a system and I can't prove that it complies with all of the laws that regulates my field then I'm not allowed to sell that system.
      If I sell it anyway then I will be fined. (Or possibly imprisoned if someone gets killed because of me not following the norms.)

      If it is considered illegal when I design a system that is too complex to verify the legality of, why isn't it illegal for NSA?

    7. Re:Fine ... by TheCarp · · Score: 3, Insightful

      I think you are seriously overthinking this. Its very simple. They CAN save data. Period. How do I know? Its very simple here. Do you really believe that if they found credible data on a top Con Queso leader, that they would need to analyse it within a specific time frame before they lose it forever, or do you think they can flag it to be saved?

      Very simple. Being able to do this is a basic requirement for them, so they can do it already, right now.

      So any claim that they could not do this is so disingenuous on its face that it is ridiculous. If you claim in court that you can't be the rapist because you cut your penis off as a child, then at the VERY LEAST, you should fully expect to be dropping your pants in front of somebody who can verify this.

      They may as well be claiming they don't use computers at all to do their work, the claim would be 100% every bit as credible.

      --
      "I opened my eyes, and everything went dark again"
  3. Are they arguing Occam's Razor? by timrod · · Score: 5, Insightful

    So wait, the NSA's argument as to why their program is legal.. is that they're too incompetent to design a system that can follow the law. Shouldn't this be grounds to fire everyone at the NSA for incompetence, if this is the argument they're using?

  4. Can't hold data, or can't tell the truth? by alphatel · · Score: 5, Insightful

    "This of course implies that they have no backup system — or at least that the backup are not held for long."

    It implies nothing other than the NSA continues to lie whenever an order to turnover data is presented.

    --
    When the foot seeks the place of the head, the line is crossed. Know your place. Keep your place. Be a shoe.
  5. Awesome by 50000BTU_barbecue · · Score: 3, Insightful

    My biology is so complex it's not understood yet either!

    Woohoo! Behold the new lawless me!!!!!

    --
    Mostly random stuff.
  6. The Boy Who Cried Wolf by Anonymous Coward · · Score: 5, Insightful

    Everything concerning the NSA has "an immediate, specific, and harmful impact on the national security of the United States."

    Releasing any information has "an immediate, specific, and harmful impact on the national security of the United States."
    Saving any information has "an immediate, specific, and harmful impact on the national security of the United States."
    Any whistle blowers have "an immediate, specific, and harmful impact on the national security of the United States."
    Disagreeing with any official has "an immediate, specific, and harmful impact on the national security of the United States."
    Giving out the legal reasoning behing their operations has "an immediate, specific, and harmful impact on the national security of the United States."

    Why have more people not clued in that the NSA is "an immediate, specific, and harmful impact on the national security of the United States."

    they have damaged the reputation of their agencies simply by believing that none of their secrets would get out. My mom always told me that once more than one person knows something it is no longer a secret and will not be kept that way.

  7. Lies. by Charliemopps · · Score: 5, Insightful

    The NSA, The CIA, the FBI and the Justice department have already been caught in BOLD FACED LIES in regards to their activities on dozens of occasions. The Presidents (both Obama and Bush) have gone on National Television and lied directly to the American people regarding this programs over and over and over again. Several NSA directors have gone in front of congress and lied while under oath. They were then called back and admitted that they're lied. You cannot trust anything they say at all. The only solution to this is to shut down the agency. They are willing to violate the law, the constitution, court order and even the will of the president. No regulatory reform or court order will be effective against an agency that thinks its charter is more important than obeying the law or will of the people. They fundamentally believe that your physical safety is more important than our individual rights. That is totalitarianism. It is not a belief that is compatible with democracy.

    1. Re:Lies. by Princeofcups · · Score: 3, Insightful

      They fundamentally believe that your physical safety is more important than our individual rights.

      You were great until that line. "Safety" is purely a PR term. They are protecting corporate interests, not individual's safety.

      --
      The only thing worse than a Democrat is a Republican.
  8. I believe them by towermac · · Score: 3, Insightful

    It's the biggest system there is. There's nothing to 'back it up to', for various reasons. The letter of the (original) order can't be complied with, without shutting it off, and saving the current contents for the upcoming hearing (or trial). In the meantime, we have nothing as far as NSA protection goes. I get that.

    That doesn't mean the the spirit of the order can't be complied with. Snapshots of sections, randomly chosen database blocks from among representative groups, a sampling of the most called routines; something. If it's a freaking computer, then there is some way that evidence can be gotten without bringing the system down, assuming cooperation on the part of the admins. I hope they are not getting off the hook.

  9. So what they are saying is... by TheCarp · · Score: 3, Interesting

    So if their system is too complex to obey the law....the short version of what they said is "We built a system without regard to the law" and "We broke the law". Thank you for the confession. Now its time to start dismantling and prosecuting thanks.

    --
    "I opened my eyes, and everything went dark again"
  10. Too complex? Then simplify them! by kheldan · · Score: 3, Insightful

    Aww, poor NSA, their systems are too complex for them to control according to the law? What a terrible 1st world problem to have! Fear not NSA, I have a solution that will take this horrible burden off your shoulders, and make the rest of us happy at the same time: simplify your goddamn systems to the point where you can 'control' them and be in accordance with the law. Either that or maybe we need to take a chainsaw to your 'systems' and just chop them down to a reasonable size. Here, here's an abacus, that's about all I'd trust you motherfuckers with at this point.

    --
    Are YOU using the TOOL, or is the TOOL using YOU? Think about it!
  11. Target audience by Livius · · Score: 4, Interesting

    They don't actually mean that the system is too complex to obey the law.

    They merely mean that it is too complex for "journalists" to tell whether they are obeying the law or not.