This has zero to do with Citizens United, and you're right: not only are the parallels not "quite right": they're utterly wrong.
That said, the concept of "corporate personhood" in the US isn't a new construct, and didn't start with Citizens United. US case law has treated corporations as "persons" for purposes of suing and being sued since the 1800s. Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819) recognized corporations as having the same rights as natural persons to contract and to enforce contracts.
Given the principles of free speech, I am curious, though:
How would you propose certain speech be defined as "political" or supporting a candidate or campaign?
Can a business buy 30 seconds of dead air on television? How about a person reading the introductory paragraphs of Moby Dick? What about an ad promoting privatized healthcare? An ad saying, "Tell [insert elected official here] you disagree with X?
Would there be some kind of a board of arbiters which decides what and what doesn't constitute political speech? What speech would "win"? Only that which someone personally agrees with? Free speech is free speech — warts and all.
Not surprised that an article about Canadian law and a Canadian corporation immediately turned to something as unrelated as Citizens United corporate personhood in the US
All those words and you didn't answer a simple technical question. We can agree that it's illegal for the NSA to read the communications of an American citizen, even an American citizen abroad. When the NSA is filtering internet traffic, how does it know which packets to discard without reading them first?
I answered it -- many times in many of my responses on this and similar topics -- you just choose not to accept it.
It is prohibited to read the CONTENTS of the communications of a US Person anywhere on the globe without a warrant.
Traffic METADATA -- i.e. envelope information such as source and destination IP addresses, email addresses, phone numbers, etc. -- may be examined without a warrant. This is not new, or "post-9/11" -- this has been the case for several decades.
Foreign traffic is TARGETED -- that is, a determination is made that a particular traffic identifier belongs to an intelligence target, and that target has been determined to not be a US Person. Note that the process of determining that someone is not a US Person does NOT require the equivalent oversight of a warrant, because that would defeat the entire fact that collecting such traffic, well, does not require a warrant. Note further that this is also not a new or "post-9/11" construct. What is new is being able to also target traffic of non-US Persons in the digital realm on networks and infrastructure within the United States.
When you claimed that 1) it was illegal for the NSA to listen to the communications of American citizens. and 2) that the NSA obeyed the law. From that, we can deduce that the NSA does not listen to the communications of American citizens. But we know that the NSA does listen to the communications of foreigners.
Therefore simple logic tells us that the NSA has a magical device that can distinguish the nationality of the sender of packets without reading them. That, or we are being lied to. Which is it?
Neither.
The Intelligence Community can and does develop unique identifiers that are associated with FOREIGN targets.
NSA can target foreign traffic by looking at the traffic metadata in order to match with these known unique identifiers associated with that foreign target, and also using complex, long-established, and well-understood, but admittedly still imperfect, procedures which aid a determination that traffic may be associated with a US Person, and also long-held rules which require immediate mitigation and minimization if traffic CONTENT belonging to a US Person is inappropriately collected.
Having a capability != must be using that capability. This is the part you can't accept, even thought the law and peoples' own honor and dedication to that law is often the only thing that prevents abuse.
I understand that you don't believe this is what's happening, and because it can't be definitively proven to you that it isn't happening, you will instead choose to assume NSA is illegally spying on all Americans.
As to your last comment, you're deluded if you don't realize that we know more about the activities of government in free societies than we ever have at any point in history.
As a technical matter, how does the wiretap apparatus distinguish American packets from foreign packets without reading the American packets?
Actually I discussed just this issue:
You're mistaking capability with intent and action: that if NSA has the "capability" to do something, it must be doing it unless it can be proven otherwise (which is impossible, given the need to keep intelligence sources, methods, techniques, and capabilities secret). By that logic, all NSA's listening posts around the world and on Navy ships that have the capability to intercept traffic of US Persons, and all US intelligence operations which the capability to target US Persons, must be doing so, because they are physically capable of it.
The distinction isn't made in our capabilities. A gun can just as easily kill a friend as an enemy. The distinction about what is acceptable and lawful versus what isn't is made in the law. You choose to believe any level of access NSA has to US networks must be used to spy on Americans, and ignore the fact that the exact same equipment and infrastructure is required to lawfully target individual foreign communications within the United States, not to mention executing USCYBERCOM's mission to defend US military networks from attack.
Claiming that you can listen to foreigners without also listening to Americans is so technically implausible it's ludicrous on its face.
Where did I make that claim? In fact, not only did I not make this claim, I have a number of times indicated that a hypothetical capability which can target communications of non-US Persons traveling to, from, or within US networks and systems REQUIRES exactly what General Hayden spoke of:
Gone were the days when signals of interest -- that's what NSA calls the things they want to copy -- gone were the days when signals of interest went along some dedicated microwave link between strategic rocket forces headquarters in Moscow and some ICBM in western Siberia. By the late '90s, what NSA calls targeted communications -- things like al Qaeda communications -- coexisted out there in a great global web with your phone calls and my e-mails. NSA needed the power to pick out the one, and the discipline to leave the others alone.
I'm not arguing it's not possible to abuse it, because I'm not an idiot. What I'm arguing, essentially, is that EVERY government capability or power can be abused. Every. Single. One. So the end result of what you're saying is that NSA should not even have the capability to look at foreign traffic (which is and always has been fair game without a warrant*) within the US, because that capability could be abused. I would say that is an approach that puts the United States at a disadvantage to our adversaries that is almost difficult to imagine.
And we exist in a political culture that distrusts two things most of all: power and secrecy.
That you can even claim this with a straight face is proof that you are completely disingenouous. We have the most powerful, and most secretive government the United States has ever had. And there is ZERO political momentum in the other direction.
I didn't say that...that's part of General Hayden's remarks. But I do agree with it, so:
Are you actually being serious? I mean, really?
We know far more, in far more detail, and far more quickly, about the activities of government than at any other time in our nation's history, and in the history of humanity, and that trend is not reversing. Since I know you're a thoughtful and intelligent person, I am literally stunned and flabbergasted that you cannot see this.
* Before the stopgap Protect America Act of 2007 (PAA) and the FISA Amendments Act of 2008 (FAA), the IC assumed anyone within the US was a US Person, even if they weren't, and assumed anyone outside the US was fair game
Did you miss the part where I said, "And please don't refer to Jim Bamford's Wired piece. That's not "proof" of anything. If anything, it is speculation"? That would be the article you're referring me to.
I'm well aware of law and policy as it applies to US Persons, and I have repeatedly reiterated precisely what the law says in a number of my posts on this article alone. Nowhere have I justified a "vacuum" of all data (specifically, the collection, analysis, storage, or dissemination of the content of communications of US Persons without a warrant), which is what you believe is occurring.
Of course, in order to target traffic of non-US Persons. the metadata of ALL traffic must be able to be examined to identify and collect that traffic in the first place. Use of traffic metadata for targeting does not require a warrant.
You're mistaking capability with intent and action: that if NSA has the "capability" to do something, it must be doing it unless it can be proven otherwise (which is impossible). By that logic, all NSA's listening posts around the world and on Navy ships that have the capability to intercept traffic of US Persons, and all US intelligence operations which the capability to target US Persons, must be doing so, because they are physically capable of it.
The distinction isn't made in our capabilities. A gun can just as easily kill a friend as an enemy. The distinction about what is acceptable and lawful versus what isn't is made in the law. You choose to believe any level of access NSA has to US network must be used to spy on Americans, and ignore the fact that the exact same equipment and infrastructure is required to lawfully target individual foreign communications within the United States.
The Utah Data Center was originally designated to have a duplicate pipe for every AT&T data link going outside the US. This means that it would be able to capture all data going in and out of the country.
Really? That's what the Utah Data Center was designed to have? I really hate it when people do this, but... [citation needed]
(And please don't refer to Jim Bamford's Wired piece. That's not "proof" of anything. If anything, it is speculation.)
The mandate was changed two years ago, and now every single AT&T pipe will be replicated, and pipes for Domestic only are now to be fed in to the center as well.
Again, excuse my surprise but — where was this "mandate" changed, exactly? What was the original mandate? What was the "change" that says "every single AT&T pipe will be replicated", and where does anything say this is occurring at a data center being built for the Comprehensive National Cybersecurity Initiative? Since Binney claimed that NSA was already vacuuming up all comms 10 years ago, what is the Utah Data Center for, in your mind? I can guess, because I've seen the speculation: NSA was already illegally wiretapping all comms, but now needs a massive computing capability to search through all of it in real time (never mind that this is illegal and unconstitutional without a warrant for US Persons). When something is secret because we don't want our adversaries to understand our capabilities, it invites speculation about the "true" purpose.
The funny thing is that even thought the Utah Data Center is secret, we know more about it than we would in any other country. In China, you wouldn't even hear about equivalent cyber facilities — and there certainly wouldn't be any public discussion or debate.
All that aside, you do realize that some foreign traffic exists exclusively within the US and on US equipment, and the FISA Amendments Act of 2008 expressly allows targeting this foreign traffic without a warrant?
Wow...you actually believe that the national foreign intelligence apparatus is keeping "dossiers" and dragnets going against your "backyard scientist" friends? You must know some strange cats if your friends are being routinely raided by "feds" using high-risk entry.
It's not possible that, oh, I don't know, a neighbor — perhaps one of those "sheeple" — who actually knew the person called in a tip to police, which they then investigated, or perhaps passed on to federal authorities if they truly were "feds" and your AC story isn't bogus?
Nah, you're right: NSA illegally dragnet-wiretapping all Americans in contravention of the letter and spirit of the law, the Constitution, and NSA's own mission seems more likely.
The trouble is the mistaken and misguided belief that if there has ever been an example of abuse, or a mistake, then ALL activity MUST be abuse.
I don't think anyone's saying that. The point is that it is not sufficient to say 'we will not abuse this' or 'we do not abuse this', you have to be able to say 'we cannot abuse this'. So it only takes one example of abuse to show that's not the case and the system should be scrapped.
Are you serious?
ANY government capability can be abused. Therefore, they should all be scrapped.
Really?
To even have the capability to pick out a single foreign communication from the sea of traffic necessitates, well, having the capability to pick out a single foreign communication from the sea of traffic.
An human intelligence operative can illegally surveil an American. I.e., that have that physical capability...does that mean the CIA and human intelligence operations shouldn't exist?
That's what's wrong with this whole line of thinking: saying, "but, the system could be abused...that's the point...therefore it shouldn't exist." Wrong. Everything can be abused, and the only thing that stops it is our imperfect system of law and oversight.
Actually, I use "US Person" because it has a very specific meaning as it pertains to US intelligence activities.
Who is considered a U.S. Person?
Federal law and executive order define a U.S. Person as:
- a citizen of the United States; - an alien lawfully admitted for permanent residence; - an unincorporated association with a substantial number of members who are citizens of the U.S. or are aliens lawfully admitted for permanent residence; or - a corporation that is incorporated in the U.S.
In other words, US Person is a lot broader than just saying "American".
This is a good comment. No, I don't think anyone is asking you to blindly trust NSA or any other element of government. But as government is ultimately here to serve the people, you can't exclusively have distrust of every single action government takes. Be cautious, be vigilant. But as I have said before, the mistake is believing that because there are some examples of abuse or mistakes — and there are plenty — that EVERY activity is intentional, systematic government abuse.
The real question is do we have sufficient oversight from congress or the judiciary? It's not clear that we do.
This is an excellent question, and one that has always been relevant to the Intelligence Community. Oversight of the IC has always been institutional oversight, not direct oversight by the public. But intelligence operations require secrecy to be effective — and that secrecy, especially in an open society, invites confusion, suspicion, misunderstanding, and distrust. So don't blindly "trust" NSA, but have the fortitude to thoroughly examine its purpose, missions, and history, and the challenges associated with executing its missions.
After all, the agency that has been the chief codemaker and codebreaker, and now (as USCYBERCOM) also has the responsibility for all defensive and offensive cyber operations, can't possibly have a need for massive computing resources!
To rehash things I have said recently elsewhere:
People bring up examples like the Utah Data Center (formally known as the Community Comprehensive National Cybersecurity Initiative Data Center) as "proof" that NSA "must" be collecting information on Americans — what other possible reason would they build a data center in the heart of America? Indeed: why should our own military or government even have bases or offices in our own country? Suspicious, I tell you!
Explanations like skillful lobbying by Utah politicians, cheap, empty, existing federal land in Utah, or even more pedestrian explanations like cheap power are dismissed. The United States' legitimate cybersecurity and foreign intelligence interests are ignored. No: it must be illegally spying on Americans. Never mind that Binney claimed NSA was already doing this a decade ago — so the Utah Data Center is for what, then, exactly?
The broader point is that even a cursory examination of what's gone on since 9/11 utterly rejects claims that NSA is "dragnet-wiretapping every American" or "keeping a dossier on every American". Mark Lowenthal said it best: the Intelligence Community has a lot more important things to worry about, and with its gargantuan size and the post-9/11 gravy train the everyone rode, doesn't even have enough resources for those missions. We are YEARS behind in analyzing drone data alone. Yes, yes, let me guess: algorithms and automation will now make analysis moot, and will allow NSA to smoothly and effectively spy on every American illegally.
And now we have the ridiculous, baseless statement that the Utah Data Center can store "100 years of the world's communications". On what possible basis is that statement even being made? Certainly the secrecy of the Intelligence Community, and past transgressions, invites suspicion and scrutiny. But intelligence requires secrecy, and our adversaries — notably China — are not standing still. This is not a bogeyman argument; it's the simple truth. US investments in defense and intelligence have created the longest period without conflict between major powers in over 500 years. Laugh and scoff at this if you must.
There are actual threats in the world, and there are governments that do not favor principles of freedom and liberal democracy. There is actual tyranny and oppression in the world. In the broader global and historical context, the US is not even CLOSE to being the bad guys. For all of our faults, the dirty little secret few acknowledge is that national security and intelligence interests transcend politics and Presidential administrations. But NSA and the rest of the IC doesn't exist to serve itself. The IC is responsive to intelligence needs of senior leaders — that is its reason for being. NSA doesn't just "make up" missions, but it does execute the missions it has been assigned.
As former NSA director General Michael Hayden said, "As a professional, I'm troubled if I'm not using the full authority allowed by law."
It's fine to take issue with it, but that's how it's always been — this isn't a new construct in foreign intelligence. For as long as the US Intelligence Community has existed, foreign targets have NEVER required a warrant, because foreign targets are not seen by the law or the courts to have Fourth Amendment protections under the Constitution.
I repeat: this is not new and this is not "post-9/11". Make no mistake, foreign targets are still TARGETED. The US doesn't just eavesdrop on foreign targets for the hell of it — a target is picked after analysis of intelligence, which may identify more targets, which feed into the next "loop" of the intelligence process. It's not some kind of dragnet.
However, to pick out communications from anywhere in real time, which is the ideal state that even NSA admits it is trying to reach, you must necessarily have the ability to, well, pick out communications from anywhere in real time. To quote former DIRNSA Michael Hayden: "NSA needed the power to pick out the one, and the discipline to leave the others alone."
Furthermore, it's not a double standard — if the Constitution applied, in a practical sense, to everyone on the globe, what is the purpose for national borders? Why should a US court decide whether the Intelligence Community can target a Chinese military communications hub, or an al Qaeda satellite phone? Moreover, even if a warrant WAS required, the capability and infrastructure to capture the communications must still exist!
Every single capability that government or law enforcement has, or has ever had, can be abused. History tells us as much. Every single one of them can be turned against innocents. Every. Single. One. What stops that? Oversight and the law. We do not have direct oversight of intelligence, only institutional oversight by proxy. But that's not new, either. We constantly strive for the right level of government power vs. checks on that power.
Yes, you're 100% correct. The FISA Amendments Act of 2008 is stricter than previous law. It is expressly prohibited to target, collect, store, analyze, or disseminate the communications content of US Persons without a warrant.
Your mistake is, apparently, believing that it's happening without any sort of proof.
What we have done is shifted the notion of who is or isn't a US Person from the a place to a person.
Before 9/11, we assumed anyone — or any traffic — inside the US was a US Person, and that anyone outside the US was fair game. After 9/11, and with the increasing levels of foreign traffic traveling over the internet instead of walkie-talkies in foreign countries, the IC, and NSA in particular, was in the difficult position of needing to target traffic within the US. A series of secret orders and stopgap legislation (like the temporary Protect America Act) supported this.
The FISA Amendments Act of 2008 completely changes the pre-9/11 paradigm. Now an individual warrant is required to target a US Person anywhere on the globe, while foreign targets — even within the US — explicitly do NOT require a warrant. Foreign targets outside the US have never required a warrant, and shouldn't just because they or their traffic enter the US.
Right now, this very second, government and law enforcement have all sorts of powers they can abuse, and they have since the founding of our nation. At the same time, intelligence operations require secrecy in order to be successful. Sun Tzu said this millennia ago, long before any construct of the US, much less the West, ever existed. Yet, instead of actually becoming informed about the purpose and function of our foreign intelligence activities, people choose to believe that our government is on a singular mission to spy on Americans illegally.
If anyone claims to care about this topic at all:
1. Read my other comment on this story 2. Read former NSA and CIA director General Michael Hayden's 2006 remarks on this topic at the National Press Club (if you do nothing else, just read this) 3. Watch this months-old National Geographic Documentary on NSA 4. Ask yourself if it really makes sense that hundreds, if not thousands, of professional civilian and military members of our government have so little regard for their fellow citizens that they are systematically violating both the letter and spirit of law and the Constitution, not just once or twice or a handful of times, but every single day, with respect to every single American — when NSA's primary purpose and reason for being is FOREIGN signals intelligence — while utterly ignoring the legitimate complexity and challenges of targeting foreign traffic, in real time, on equipment and networks within the United States.
The ridiculousness here is that anyone believes that NSA actually has a "dossier" on all Americans — or even cares about Americans at all, given that its sole purpose for existence is foreign signals intelligence as exponentially increasing amounts of foreign traffic travel through networks, systems, and infrastructure on US soil. All of those foreign linguists must be for illegally spying on Americans!
Basically what you're saying is, you'd prefer to believe, without proof, allegations that the NSA is illegally dragnet-spying on ALL Americans, and has been doing so for more than a decade, which would involve at the very LEAST hundreds, and more likely thousands, of civilian and military NSA employees, all of whom don't mind that they're directly violating the Constitution, but only one guy who hasn't been at NSA in over a decade is telling you "the truth"? That really seems plausible to you?
When the Terrorist Surveillance Program was revealed by the New York Times in 2005, it only touched on numbers of Americans in the hundreds, who had direct communications with individuals tied to terrorism, was authorized by the President under Article II under the AUMF, and was renewed and briefed to Congress every 45 days — and this was four years AFTER Binney claimed NSA was already dragnet-wiretapping ALL Americans.
Never mind that restrictions on US Persons are constantly drilled into civilian and military intelligence professionals every day. Never mind the complex procedures the IC maintains specifically to NOT target or collect on Americans. Never mind that the FISA Amendments Act of 2008 is stricter than previous law.
What we have done is shifted the notion of who is or isn't a US Person from the a place to a person.
Before 9/11, we assumed anyone — or any traffic — inside the US was a US Person, and that anyone outside the US was fair game. After 9/11, and with the increasing levels of foreign traffic traveling over the internet instead of walkie-talkies in foreign countries, the IC, and NSA in particular, was in the difficult position of needing to target traffic within the US. A series of secret orders and stopgap legislation (like the temporary Protect America Act) supported this.
The FISA Amendments Act of 2008 completely changes the pre-9/11 paradigm. Now an individual warrant is required to target a US Person anywhere on the globe, while foreign targets — even within the US — explicitly do NOT require a warrant. Foreign targets outside the US have never required a warrant, and shouldn't just because they or their traffic enter the US.
For anyone who claims to care about this topic at all, I urge you to read "REMARKS BY GENERAL MICHAEL V. HAYDEN", which is former NSA and CIA directory General Michael Hayden's remarks before the National Press Club in 2006. This was still pre-FISA Amendments Act of 2008, but it gives a (very) clear picture of what the landscape and our challenges was, and still are. Also, if you care at all about what NSA does, this excellent and very recent National Geographic documentary is as close as you're going to get in an unclassified context.
A key excerpt from General Hayden's speech is included below, but again, if you purport to care about this issue at all, I urge you to read the entire speech and the Q&A, and reflect on the fact that it's not possible given the secrecy of intelligence work for NSA to "prove" that it *isn't* doing something. Oversight of the IC comes from the executive (the President), legislative (Intelligence Committees of both houses of Congress and FISA legislation), and judicial (FISC) branches. That's how oversight of the Intelligence Community has always occurred.
The trouble is the mistaken and misguided belief that if there has ever been an example of abuse, or a mistake, then ALL activity MUST be abuse. If you choose to believe that the United S
DOD, and the US Navy in particular, have considered climate change to be a major national security issue for several years. There is no question that "climate change" is occurring. As usual, what is in question is:
— Precisely what part human activity plays in concert with natural global climate cycles, and — Even if human activity is the exclusive cause, exactly how much the US and other First World nations should dramatically alter their economies and energy strategies while developing economies and other major economies (such as China and India) do comparatively nothing, absurdly sacrificing the ends to the means.
China is set to emit 50% more greenhouse gases than the US by 2015.
It doesn't matter that China has more people in the context of the climate change argument! If you identify some level x of greenhouse emissions as being a "bad" thing, then China emitting far more than the US is an extremely bad thing in terms of the effects that it would cause. One can argue that the US may be in a position to make the most impact, but with China set to significantly outpace the US in emissions and oil consumption, I think we need to take a look at what value the US taking a disproportionate hit in emissions control — and the dramatic impact that would have on our economy — would actually do for climate change that would be positive.
If the issue requires a global response — whatever the cause — then it necessarily must be a global response, not just First World nations sacrificing their entire economic and energy base, thus removing any influence they may have over the issue.
Put it another way: does anyone think that the evidence supports that China (or India, or any other developing economies) would be a better steward of this responsibility?
I like how you have insulted me for something I haven't even done. I'd wonder if the person to whom you're replying would have even posted here when he was still active — that's not a dig on him, just the way things are. And I'm also telling you the way things are.
The answer to your question is that when intelligence professionals or law enforcement officers are acting in good faith, but screw up or make a mistake, they don't get punished — and they shouldn't. You are assuming there is widespread, systemic, and systematic violation of the law known to the participants. Aside from the fact that you have no proof other than to ask me to prove it isn't happening, there is no basis to assume that intelligence officers are routinely, intentionally, and wantonly violating the law.
I think you're also misinterpreting his comment: cops don't get fired when they botch an investigation on Constitutional grounds because they aren't willfully violating the Constitution (unless they are, but I'm not talking about that case) — it's because they screwed up. That's the same reason why the rank-and-file analysts working an issue later found to have legal or constitutional problems aren't going to be punished for it. Everything that the IC does has an associated clear legal justification. It's not a free-for-all.
If there is an accidental violation, which can and does happen, there are all sorts of mitigation and response procedures. The DOD has an Intelligence Oversight office whose sole purpose is to ensure that intelligence operations do not run afoul of the law with respect to US Persons.
> 1. The law and the Constitution say they can only wiretap foreigners without a warrant.
True.
> 2. The law also says that they never have to prove that their targets are actually foreigners.
False. Completely, 100%, provably false. The law does not say this at all. Nothing like it. What the law does say is that an individualized warrant is required to target a US Person anywhere on the globe. You can't just ignore the fact that someone is a US Person.
> 3. According to the whisteblowers, what they do is target US citizens but claim they're foreigners.
See 2.
> 4. Everything is classified, so the NSA employees can't talk about it without risking serious jail time or worse for espionage.
Why aren't all three of these guys charged with crimes or in jail, then? The only one charged with anything was Drake, and that was because he talked to the press and NSA overreacted. The only charge ended up being a misdemeanor related to improper use of a government-furnished computer.
> 5. Because of the FISA Amendments Act, AT&T isn't allowed to talk about what they did to cooperate with this.
That's not what the FISA Amendments Act of 2008 says at all, but consider that large volumes of foreign traffic are traveling through US networks and equipment. NONE of that traffic requires a warrant to target. Please tell me how that traffic can be targeted without first being able to intercept it from amongst ALL traffic.
> The clear goal is the NSA being able to spy on everybody without ever having to justify their actions to anybody.
Why? To what end? Since NSA and the rest of the Intelligence Community only exists to serve intelligence consumers, the ultimate customer being the President, you're saying that NSA's customers are illegally asking it to "spy on everybody"? Or are you saying that NSA is doing it on its own in some twisted bid to have more "power" — and that everyone in the IC, Congress, the courts, and the executive branch are just allowing it and keeping it secret?
Four YEARS after Binney claimed that the NSA was spying on "everyone", the NSA's "warrantless wiretapping" program was exposed by the New York Times. And guess what? NSA didn't randomly do it on its own; they did it at the direction of the President, and it only involved people who had direct communications with terrorist suspects, and was renewed and briefed to Congress every 45 days. No, it wasn't just randomly saying, "this dude is a 'terrorist', so now we can spy on this guy". There were complex sets of legal standards, innumerable justifications, and legal questions that will never be answered. Some have been answered. Some activities were found unconstitutional. That's the way our system works.
So what was TSP, then? Just something to "throw us off" from the "truth" that NSA is spying on everyone? The Director of National Intelligence just recently admitted that some NSA activities had violated the Constitution at least once. If it's truly a secret plot to spy on all Americans, for what purpose I cannot fathom, why would the DNI admit this? Wait, wait, let me guess — it's another plot to "throw us off" so we "think the government is doing something" about Constitutional violations, when in reality, it's spying on all Americans illegally, when it doesn't even have the resources to properly execute all of our foreign intelligence needs.
The oversight of the Intelligence Community is, and always has been, accomplished via:
— The Executive branch (the President, who is the ultimate consumer of US intelligence) — The Judicial branch (the Foreign Intelligence Surveillance Court) — The Legislative branch (the Foreign Intelligence Surveillance Act and the Intelligence Committees of both houses of Congress)
History tells us that this oversight is not perfect — it never has been, and it never will be. There have been times in our history where it has become clear that oversight was lacking. Bodies of law like FISA and the amendments to FISA in 2008 were in response to these concerns, and the need to continue to execute our intelligence missions while respecting the letter and spirit of the US Constitution and US law.
Even now, the DNI has recently revealed that certain activities have violated the Constitution at least once. What is interesting to me is the reaction that if there ever has been any abuse, or if there are any current examples of abuse, that everything must be abuse, alongside the bizarre belief that the number one priority of the Intelligence Community is to illegally spy on Americans.
People bring up examples like the Utah Data Center (formally known as the Community Comprehensive National Cybersecurity Initiative Data Center) as "proof" that NSA "must" be collecting information on Americans — what other possible reason would they build a data center in the heart of America? Indeed: why should our own military or government even have bases or offices in our own country?
Explanations like skillful lobbying by Utah politicians, cheap, empty, existing federal land in Utah, or even more pedestrian explanations like cheap power are dismissed. The United States' legitimate cybersecurity and foreign intelligence interests are ignored. No: it must be illegally spying on Americans. Never mind that the the prohibitions on US Persons are constantly and endlessly drilled into every military and civilian intelligence professional.
What reason is there to believe any government agency ever obeys the law? Could it be that most people in government are public servants who take their obligations to the law, the Constitution, and the people of the United States seriously? Certainly government is imperfect, and examples of corruption, waste, abuse, incompetence, inattention, laziness, idiocy, and more abound.
NSA has two missions: Foreign Signals Intelligence (stealing adversary communications and breaking adversary codes) Information Assurance (making sure adversaries can't steal our communications or break our codes). This is all NSA does. Other than the patent and utter illegality, what possible purpose does NSA have to spy on all Americans in direct violation of the law and Constitution?
When NSA implemented the so-called Terrorist Surveillance Program that was exposed in 2005 by the New York Times, it did not do so on its own. It did so at the explicit direction of the President, under a complex framework of legal justifications primarily tied to Article II authority under the AUMF. That was four YEARS after the whistleblowers claim NSA was "wiretapping every American" — and even that program only touched numbers of people in the hundreds, who had DIRECT COMMUNICATIONS with terrorist targets, AND was renewed and briefed to senior members of Congress every 45 days. Was it right? Is the Article II argument right? I don't know the answer to that question. The FISA Amendments Act of 2008 closed a lot of the egregious intelligence gaps the US had as adversary communications increasingly moved to the digital world.
The broader point is that even a cursory examination of what's gone on since 9/11 utterly rejects claims that NSA is "dragnet-wiretapping every American" or "keeping a dossier on every American". Mark Lowenthal said it best: the Intelligence Community has a lot more important things to worry about, and with its gargantuan size and the post-9/1
It is prohibited to collect, store, analyze, or disseminate the contents of communications of US Persons anywhere on the globe without an individual, properly adjudicated warrant. This is as clear as it can possibly be spelled out.
NSA may, however, target the communications of NON-US Persons, even on equipment and systems within the United States, without a warrant. Foreign intelligence surveillance has never required a warrant. The Constitution of the United States does not apply to non-US Persons.
Foreign communications that used to be targeted via a remote listening post, on a Navy ship sitting off of a foreign coast, or via risky foreign wiretaps, now travel through networks and systems that sometimes exist within the United States.
Tell me: how can NSA discern and identify targeted foreign traffic in the sea of all communications, including that of US Persons, traveling through US assets without being able to examine the metadata of said traffic? Therein likes the problem.
Here is where some also say that the US sidesteps the law by "buying" data from commercial providers, or by getting it from allies. Sorry, both of those activities are prohibited: the content of communications of US Persons may not be collected, stored, analyzed, or disseminated without a warrant.
Some people, apparently unaware of history or any semblance of reality, also can't accept that the United States has a legitimate interest in foreign intelligence, and that we need to conduct that mission. Why does NSA have the largest number of foreign linguists anywhere? To spy on Americans illegally?
Does all of this mean the government has never done anything wrong, that there has never been any abuse, that citizens shouldn't be watchful? No. Even the decisions made after 9/11 resulted in the warrantless wiretapping of individuals in the hundreds, thought to have direct ties to terrorism, was justified under the guise of the President's Article II authority under the AUMF, and briefed to Congress every 45 days. Now someone who hasn't been at NSA in over a decade claims that there is a "dossier" on every American, with no proof...and completely ignores the primary function of NSA, which is foreign signals intelligence, and you swallow it as unvarnished fact?
No. You can't sidestep the law and obtain the content of communications of US Persons by "buying" or otherwise obtaining it from commercial entities, or from allies.
However, things like you're talking about, such as bank records, are not communications content. They and other similar things are covered by entirely different bodies of law some of which may, or may not, require warrants. That said, if something DOES require a warrant, the government is not allowed to buy it from a commercial entity that can collect it, or obtain it from allies with whom we share intelligence. That's not the way the law works.
China doesn't want to cooperate. They are waiting their "turn" to be "#1".
They have increased military spending 12% each year for the last 12 years, and are on track to exceed US military spending by 2020-2025. Is this for "peaceful regional defense"?
Do you think the world just errs toward freedom and liberal democracy with nothing being done to promote either?
Slashdot Mirror
...is here
This has zero to do with Citizens United, and you're right: not only are the parallels not "quite right": they're utterly wrong.
That said, the concept of "corporate personhood" in the US isn't a new construct, and didn't start with Citizens United. US case law has treated corporations as "persons" for purposes of suing and being sued since the 1800s. Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819) recognized corporations as having the same rights as natural persons to contract and to enforce contracts.
Given the principles of free speech, I am curious, though:
How would you propose certain speech be defined as "political" or supporting a candidate or campaign?
Can a business buy 30 seconds of dead air on television?
How about a person reading the introductory paragraphs of Moby Dick?
What about an ad promoting privatized healthcare?
An ad saying, "Tell [insert elected official here] you disagree with X?
Would there be some kind of a board of arbiters which decides what and what doesn't constitute political speech? What speech would "win"? Only that which someone personally agrees with? Free speech is free speech — warts and all.
Not surprised that an article about Canadian law and a Canadian corporation immediately turned to something as unrelated as Citizens United corporate personhood in the US
I answered it -- many times in many of my responses on this and similar topics -- you just choose not to accept it.
It is prohibited to read the CONTENTS of the communications of a US Person anywhere on the globe without a warrant.
Traffic METADATA -- i.e. envelope information such as source and destination IP addresses, email addresses, phone numbers, etc. -- may be examined without a warrant. This is not new, or "post-9/11" -- this has been the case for several decades.
Foreign traffic is TARGETED -- that is, a determination is made that a particular traffic identifier belongs to an intelligence target, and that target has been determined to not be a US Person. Note that the process of determining that someone is not a US Person does NOT require the equivalent oversight of a warrant, because that would defeat the entire fact that collecting such traffic, well, does not require a warrant. Note further that this is also not a new or "post-9/11" construct. What is new is being able to also target traffic of non-US Persons in the digital realm on networks and infrastructure within the United States.
Neither.
The Intelligence Community can and does develop unique identifiers that are associated with FOREIGN targets.
NSA can target foreign traffic by looking at the traffic metadata in order to match with these known unique identifiers associated with that foreign target, and also using complex, long-established, and well-understood, but admittedly still imperfect, procedures which aid a determination that traffic may be associated with a US Person, and also long-held rules which require immediate mitigation and minimization if traffic CONTENT belonging to a US Person is inappropriately collected.
Having a capability != must be using that capability. This is the part you can't accept, even thought the law and peoples' own honor and dedication to that law is often the only thing that prevents abuse.
I understand that you don't believe this is what's happening, and because it can't be definitively proven to you that it isn't happening, you will instead choose to assume NSA is illegally spying on all Americans.
As to your last comment, you're deluded if you don't realize that we know more about the activities of government in free societies than we ever have at any point in history.
Actually I discussed just this issue:
You're mistaking capability with intent and action: that if NSA has the "capability" to do something, it must be doing it unless it can be proven otherwise (which is impossible, given the need to keep intelligence sources, methods, techniques, and capabilities secret). By that logic, all NSA's listening posts around the world and on Navy ships that have the capability to intercept traffic of US Persons, and all US intelligence operations which the capability to target US Persons, must be doing so, because they are physically capable of it.
The distinction isn't made in our capabilities. A gun can just as easily kill a friend as an enemy. The distinction about what is acceptable and lawful versus what isn't is made in the law. You choose to believe any level of access NSA has to US networks must be used to spy on Americans, and ignore the fact that the exact same equipment and infrastructure is required to lawfully target individual foreign communications within the United States, not to mention executing USCYBERCOM's mission to defend US military networks from attack.
Where did I make that claim? In fact, not only did I not make this claim, I have a number of times indicated that a hypothetical capability which can target communications of non-US Persons traveling to, from, or within US networks and systems REQUIRES exactly what General Hayden spoke of:
Gone were the days when signals of interest -- that's what NSA calls the things they want to copy -- gone were the days when signals of interest went along some dedicated microwave link between strategic rocket forces headquarters in Moscow and some ICBM in western Siberia. By the late '90s, what NSA calls targeted communications -- things like al Qaeda communications -- coexisted out there in a great global web with your phone calls and my e-mails. NSA needed the power to pick out the one, and the discipline to leave the others alone.
I'm not arguing it's not possible to abuse it, because I'm not an idiot. What I'm arguing, essentially, is that EVERY government capability or power can be abused. Every. Single. One. So the end result of what you're saying is that NSA should not even have the capability to look at foreign traffic (which is and always has been fair game without a warrant*) within the US, because that capability could be abused. I would say that is an approach that puts the United States at a disadvantage to our adversaries that is almost difficult to imagine.
I didn't say that...that's part of General Hayden's remarks. But I do agree with it, so:
Are you actually being serious? I mean, really?
We know far more, in far more detail, and far more quickly, about the activities of government than at any other time in our nation's history, and in the history of humanity, and that trend is not reversing. Since I know you're a thoughtful and intelligent person, I am literally stunned and flabbergasted that you cannot see this.
* Before the stopgap Protect America Act of 2007 (PAA) and the FISA Amendments Act of 2008 (FAA), the IC assumed anyone within the US was a US Person, even if they weren't, and assumed anyone outside the US was fair game
Did you miss the part where I said, "And please don't refer to Jim Bamford's Wired piece. That's not "proof" of anything. If anything, it is speculation"? That would be the article you're referring me to.
I'm well aware of law and policy as it applies to US Persons, and I have repeatedly reiterated precisely what the law says in a number of my posts on this article alone. Nowhere have I justified a "vacuum" of all data (specifically, the collection, analysis, storage, or dissemination of the content of communications of US Persons without a warrant), which is what you believe is occurring.
Of course, in order to target traffic of non-US Persons. the metadata of ALL traffic must be able to be examined to identify and collect that traffic in the first place. Use of traffic metadata for targeting does not require a warrant.
You're mistaking capability with intent and action: that if NSA has the "capability" to do something, it must be doing it unless it can be proven otherwise (which is impossible). By that logic, all NSA's listening posts around the world and on Navy ships that have the capability to intercept traffic of US Persons, and all US intelligence operations which the capability to target US Persons, must be doing so, because they are physically capable of it.
The distinction isn't made in our capabilities. A gun can just as easily kill a friend as an enemy. The distinction about what is acceptable and lawful versus what isn't is made in the law. You choose to believe any level of access NSA has to US network must be used to spy on Americans, and ignore the fact that the exact same equipment and infrastructure is required to lawfully target individual foreign communications within the United States.
Really? That's what the Utah Data Center was designed to have? I really hate it when people do this, but... [citation needed]
(And please don't refer to Jim Bamford's Wired piece. That's not "proof" of anything. If anything, it is speculation.)
Again, excuse my surprise but — where was this "mandate" changed, exactly? What was the original mandate? What was the "change" that says "every single AT&T pipe will be replicated", and where does anything say this is occurring at a data center being built for the Comprehensive National Cybersecurity Initiative? Since Binney claimed that NSA was already vacuuming up all comms 10 years ago, what is the Utah Data Center for, in your mind? I can guess, because I've seen the speculation: NSA was already illegally wiretapping all comms, but now needs a massive computing capability to search through all of it in real time (never mind that this is illegal and unconstitutional without a warrant for US Persons). When something is secret because we don't want our adversaries to understand our capabilities, it invites speculation about the "true" purpose.
The funny thing is that even thought the Utah Data Center is secret, we know more about it than we would in any other country. In China, you wouldn't even hear about equivalent cyber facilities — and there certainly wouldn't be any public discussion or debate.
All that aside, you do realize that some foreign traffic exists exclusively within the US and on US equipment, and the FISA Amendments Act of 2008 expressly allows targeting this foreign traffic without a warrant?
Wow...you actually believe that the national foreign intelligence apparatus is keeping "dossiers" and dragnets going against your "backyard scientist" friends? You must know some strange cats if your friends are being routinely raided by "feds" using high-risk entry.
It's not possible that, oh, I don't know, a neighbor — perhaps one of those "sheeple" — who actually knew the person called in a tip to police, which they then investigated, or perhaps passed on to federal authorities if they truly were "feds" and your AC story isn't bogus?
Nah, you're right: NSA illegally dragnet-wiretapping all Americans in contravention of the letter and spirit of the law, the Constitution, and NSA's own mission seems more likely.
...
The trouble is the mistaken and misguided belief that if there has ever been an example of abuse, or a mistake, then ALL activity MUST be abuse.
I don't think anyone's saying that. The point is that it is not sufficient to say 'we will not abuse this' or 'we do not abuse this', you have to be able to say 'we cannot abuse this'. So it only takes one example of abuse to show that's not the case and the system should be scrapped.
Are you serious?
ANY government capability can be abused. Therefore, they should all be scrapped.
Really?
To even have the capability to pick out a single foreign communication from the sea of traffic necessitates, well, having the capability to pick out a single foreign communication from the sea of traffic.
An human intelligence operative can illegally surveil an American. I.e., that have that physical capability...does that mean the CIA and human intelligence operations shouldn't exist?
That's what's wrong with this whole line of thinking: saying, "but, the system could be abused...that's the point...therefore it shouldn't exist." Wrong. Everything can be abused, and the only thing that stops it is our imperfect system of law and oversight.
Actually, I use "US Person" because it has a very specific meaning as it pertains to US intelligence activities.
In other words, US Person is a lot broader than just saying "American".
Well, they're just as relevant, since it's the same article, and the same topic, and just wrote them yesterday.
This is a good comment. No, I don't think anyone is asking you to blindly trust NSA or any other element of government. But as government is ultimately here to serve the people, you can't exclusively have distrust of every single action government takes. Be cautious, be vigilant. But as I have said before, the mistake is believing that because there are some examples of abuse or mistakes — and there are plenty — that EVERY activity is intentional, systematic government abuse.
This is an excellent question, and one that has always been relevant to the Intelligence Community. Oversight of the IC has always been institutional oversight, not direct oversight by the public. But intelligence operations require secrecy to be effective — and that secrecy, especially in an open society, invites confusion, suspicion, misunderstanding, and distrust. So don't blindly "trust" NSA, but have the fortitude to thoroughly examine its purpose, missions, and history, and the challenges associated with executing its missions.
Indeed, what about the Utah Data Center?
After all, the agency that has been the chief codemaker and codebreaker, and now (as USCYBERCOM) also has the responsibility for all defensive and offensive cyber operations, can't possibly have a need for massive computing resources!
To rehash things I have said recently elsewhere:
People bring up examples like the Utah Data Center (formally known as the Community Comprehensive National Cybersecurity Initiative Data Center) as "proof" that NSA "must" be collecting information on Americans — what other possible reason would they build a data center in the heart of America? Indeed: why should our own military or government even have bases or offices in our own country? Suspicious, I tell you!
Explanations like skillful lobbying by Utah politicians, cheap, empty, existing federal land in Utah, or even more pedestrian explanations like cheap power are dismissed. The United States' legitimate cybersecurity and foreign intelligence interests are ignored. No: it must be illegally spying on Americans. Never mind that Binney claimed NSA was already doing this a decade ago — so the Utah Data Center is for what, then, exactly?
The broader point is that even a cursory examination of what's gone on since 9/11 utterly rejects claims that NSA is "dragnet-wiretapping every American" or "keeping a dossier on every American". Mark Lowenthal said it best: the Intelligence Community has a lot more important things to worry about, and with its gargantuan size and the post-9/11 gravy train the everyone rode, doesn't even have enough resources for those missions. We are YEARS behind in analyzing drone data alone. Yes, yes, let me guess: algorithms and automation will now make analysis moot, and will allow NSA to smoothly and effectively spy on every American illegally.
And now we have the ridiculous, baseless statement that the Utah Data Center can store "100 years of the world's communications". On what possible basis is that statement even being made? Certainly the secrecy of the Intelligence Community, and past transgressions, invites suspicion and scrutiny. But intelligence requires secrecy, and our adversaries — notably China — are not standing still. This is not a bogeyman argument; it's the simple truth. US investments in defense and intelligence have created the longest period without conflict between major powers in over 500 years. Laugh and scoff at this if you must.
There are actual threats in the world, and there are governments that do not favor principles of freedom and liberal democracy. There is actual tyranny and oppression in the world. In the broader global and historical context, the US is not even CLOSE to being the bad guys. For all of our faults, the dirty little secret few acknowledge is that national security and intelligence interests transcend politics and Presidential administrations. But NSA and the rest of the IC doesn't exist to serve itself. The IC is responsive to intelligence needs of senior leaders — that is its reason for being. NSA doesn't just "make up" missions, but it does execute the missions it has been assigned.
As former NSA director General Michael Hayden said, "As a professional, I'm troubled if I'm not using the full authority allowed by law."
It's fine to take issue with it, but that's how it's always been — this isn't a new construct in foreign intelligence. For as long as the US Intelligence Community has existed, foreign targets have NEVER required a warrant, because foreign targets are not seen by the law or the courts to have Fourth Amendment protections under the Constitution.
I repeat: this is not new and this is not "post-9/11". Make no mistake, foreign targets are still TARGETED. The US doesn't just eavesdrop on foreign targets for the hell of it — a target is picked after analysis of intelligence, which may identify more targets, which feed into the next "loop" of the intelligence process. It's not some kind of dragnet.
However, to pick out communications from anywhere in real time, which is the ideal state that even NSA admits it is trying to reach, you must necessarily have the ability to, well, pick out communications from anywhere in real time. To quote former DIRNSA Michael Hayden: "NSA needed the power to pick out the one, and the discipline to leave the others alone."
Furthermore, it's not a double standard — if the Constitution applied, in a practical sense, to everyone on the globe, what is the purpose for national borders? Why should a US court decide whether the Intelligence Community can target a Chinese military communications hub, or an al Qaeda satellite phone? Moreover, even if a warrant WAS required, the capability and infrastructure to capture the communications must still exist!
Every single capability that government or law enforcement has, or has ever had, can be abused. History tells us as much. Every single one of them can be turned against innocents. Every. Single. One. What stops that? Oversight and the law. We do not have direct oversight of intelligence, only institutional oversight by proxy. But that's not new, either. We constantly strive for the right level of government power vs. checks on that power.
To repeat myself:
The trouble is the mistaken and misguided belief that if there has ever been an example of abuse, or a mistake, then ALL activity MUST be abuse.
Yes, you're 100% correct. The FISA Amendments Act of 2008 is stricter than previous law. It is expressly prohibited to target, collect, store, analyze, or disseminate the communications content of US Persons without a warrant.
Your mistake is, apparently, believing that it's happening without any sort of proof.
What we have done is shifted the notion of who is or isn't a US Person from the a place to a person.
Before 9/11, we assumed anyone — or any traffic — inside the US was a US Person, and that anyone outside the US was fair game. After 9/11, and with the increasing levels of foreign traffic traveling over the internet instead of walkie-talkies in foreign countries, the IC, and NSA in particular, was in the difficult position of needing to target traffic within the US. A series of secret orders and stopgap legislation (like the temporary Protect America Act) supported this.
The FISA Amendments Act of 2008 completely changes the pre-9/11 paradigm. Now an individual warrant is required to target a US Person anywhere on the globe, while foreign targets — even within the US — explicitly do NOT require a warrant. Foreign targets outside the US have never required a warrant, and shouldn't just because they or their traffic enter the US.
Right now, this very second, government and law enforcement have all sorts of powers they can abuse, and they have since the founding of our nation. At the same time, intelligence operations require secrecy in order to be successful. Sun Tzu said this millennia ago, long before any construct of the US, much less the West, ever existed. Yet, instead of actually becoming informed about the purpose and function of our foreign intelligence activities, people choose to believe that our government is on a singular mission to spy on Americans illegally.
If anyone claims to care about this topic at all:
1. Read my other comment on this story
2. Read former NSA and CIA director General Michael Hayden's 2006 remarks on this topic at the National Press Club (if you do nothing else, just read this)
3. Watch this months-old National Geographic Documentary on NSA
4. Ask yourself if it really makes sense that hundreds, if not thousands, of professional civilian and military members of our government have so little regard for their fellow citizens that they are systematically violating both the letter and spirit of law and the Constitution, not just once or twice or a handful of times, but every single day, with respect to every single American — when NSA's primary purpose and reason for being is FOREIGN signals intelligence — while utterly ignoring the legitimate complexity and challenges of targeting foreign traffic, in real time, on equipment and networks within the United States.
The ridiculousness here is that anyone believes that NSA actually has a "dossier" on all Americans — or even cares about Americans at all, given that its sole purpose for existence is foreign signals intelligence as exponentially increasing amounts of foreign traffic travel through networks, systems, and infrastructure on US soil. All of those foreign linguists must be for illegally spying on Americans!
Basically what you're saying is, you'd prefer to believe, without proof, allegations that the NSA is illegally dragnet-spying on ALL Americans, and has been doing so for more than a decade, which would involve at the very LEAST hundreds, and more likely thousands, of civilian and military NSA employees, all of whom don't mind that they're directly violating the Constitution, but only one guy who hasn't been at NSA in over a decade is telling you "the truth"? That really seems plausible to you?
When the Terrorist Surveillance Program was revealed by the New York Times in 2005, it only touched on numbers of Americans in the hundreds, who had direct communications with individuals tied to terrorism, was authorized by the President under Article II under the AUMF, and was renewed and briefed to Congress every 45 days — and this was four years AFTER Binney claimed NSA was already dragnet-wiretapping ALL Americans.
Never mind that restrictions on US Persons are constantly drilled into civilian and military intelligence professionals every day. Never mind the complex procedures the IC maintains specifically to NOT target or collect on Americans. Never mind that the FISA Amendments Act of 2008 is stricter than previous law.
What we have done is shifted the notion of who is or isn't a US Person from the a place to a person.
Before 9/11, we assumed anyone — or any traffic — inside the US was a US Person, and that anyone outside the US was fair game. After 9/11, and with the increasing levels of foreign traffic traveling over the internet instead of walkie-talkies in foreign countries, the IC, and NSA in particular, was in the difficult position of needing to target traffic within the US. A series of secret orders and stopgap legislation (like the temporary Protect America Act) supported this.
The FISA Amendments Act of 2008 completely changes the pre-9/11 paradigm. Now an individual warrant is required to target a US Person anywhere on the globe, while foreign targets — even within the US — explicitly do NOT require a warrant. Foreign targets outside the US have never required a warrant, and shouldn't just because they or their traffic enter the US.
For anyone who claims to care about this topic at all, I urge you to read "REMARKS BY GENERAL MICHAEL V. HAYDEN", which is former NSA and CIA directory General Michael Hayden's remarks before the National Press Club in 2006. This was still pre-FISA Amendments Act of 2008, but it gives a (very) clear picture of what the landscape and our challenges was, and still are. Also, if you care at all about what NSA does, this excellent and very recent National Geographic documentary is as close as you're going to get in an unclassified context.
A key excerpt from General Hayden's speech is included below, but again, if you purport to care about this issue at all, I urge you to read the entire speech and the Q&A, and reflect on the fact that it's not possible given the secrecy of intelligence work for NSA to "prove" that it *isn't* doing something. Oversight of the IC comes from the executive (the President), legislative (Intelligence Committees of both houses of Congress and FISA legislation), and judicial (FISC) branches. That's how oversight of the Intelligence Community has always occurred.
The trouble is the mistaken and misguided belief that if there has ever been an example of abuse, or a mistake, then ALL activity MUST be abuse. If you choose to believe that the United S
DOD, and the US Navy in particular, have considered climate change to be a major national security issue for several years. There is no question that "climate change" is occurring. As usual, what is in question is:
— Precisely what part human activity plays in concert with natural global climate cycles, and
— Even if human activity is the exclusive cause, exactly how much the US and other First World nations should dramatically alter their economies and energy strategies while developing economies and other major economies (such as China and India) do comparatively nothing, absurdly sacrificing the ends to the means.
China is set to emit 50% more greenhouse gases than the US by 2015.
It doesn't matter that China has more people in the context of the climate change argument! If you identify some level x of greenhouse emissions as being a "bad" thing, then China emitting far more than the US is an extremely bad thing in terms of the effects that it would cause. One can argue that the US may be in a position to make the most impact, but with China set to significantly outpace the US in emissions and oil consumption, I think we need to take a look at what value the US taking a disproportionate hit in emissions control — and the dramatic impact that would have on our economy — would actually do for climate change that would be positive.
If the issue requires a global response — whatever the cause — then it necessarily must be a global response, not just First World nations sacrificing their entire economic and energy base, thus removing any influence they may have over the issue.
Put it another way: does anyone think that the evidence supports that China (or India, or any other developing economies) would be a better steward of this responsibility?
Thanks for adding your intelligence to this conversation!
I like how you have insulted me for something I haven't even done. I'd wonder if the person to whom you're replying would have even posted here when he was still active — that's not a dig on him, just the way things are. And I'm also telling you the way things are.
The answer to your question is that when intelligence professionals or law enforcement officers are acting in good faith, but screw up or make a mistake, they don't get punished — and they shouldn't. You are assuming there is widespread, systemic, and systematic violation of the law known to the participants. Aside from the fact that you have no proof other than to ask me to prove it isn't happening, there is no basis to assume that intelligence officers are routinely, intentionally, and wantonly violating the law.
I think you're also misinterpreting his comment: cops don't get fired when they botch an investigation on Constitutional grounds because they aren't willfully violating the Constitution (unless they are, but I'm not talking about that case) — it's because they screwed up. That's the same reason why the rank-and-file analysts working an issue later found to have legal or constitutional problems aren't going to be punished for it. Everything that the IC does has an associated clear legal justification. It's not a free-for-all.
If there is an accidental violation, which can and does happen, there are all sorts of mitigation and response procedures. The DOD has an Intelligence Oversight office whose sole purpose is to ensure that intelligence operations do not run afoul of the law with respect to US Persons.
> 1. The law and the Constitution say they can only wiretap foreigners without a warrant.
True.
> 2. The law also says that they never have to prove that their targets are actually foreigners.
False. Completely, 100%, provably false. The law does not say this at all. Nothing like it. What the law does say is that an individualized warrant is required to target a US Person anywhere on the globe. You can't just ignore the fact that someone is a US Person.
> 3. According to the whisteblowers, what they do is target US citizens but claim they're foreigners.
See 2.
> 4. Everything is classified, so the NSA employees can't talk about it without risking serious jail time or worse for espionage.
Why aren't all three of these guys charged with crimes or in jail, then? The only one charged with anything was Drake, and that was because he talked to the press and NSA overreacted. The only charge ended up being a misdemeanor related to improper use of a government-furnished computer.
> 5. Because of the FISA Amendments Act, AT&T isn't allowed to talk about what they did to cooperate with this.
That's not what the FISA Amendments Act of 2008 says at all, but consider that large volumes of foreign traffic are traveling through US networks and equipment. NONE of that traffic requires a warrant to target. Please tell me how that traffic can be targeted without first being able to intercept it from amongst ALL traffic.
> The clear goal is the NSA being able to spy on everybody without ever having to justify their actions to anybody.
Why? To what end? Since NSA and the rest of the Intelligence Community only exists to serve intelligence consumers, the ultimate customer being the President, you're saying that NSA's customers are illegally asking it to "spy on everybody"? Or are you saying that NSA is doing it on its own in some twisted bid to have more "power" — and that everyone in the IC, Congress, the courts, and the executive branch are just allowing it and keeping it secret?
Four YEARS after Binney claimed that the NSA was spying on "everyone", the NSA's "warrantless wiretapping" program was exposed by the New York Times. And guess what? NSA didn't randomly do it on its own; they did it at the direction of the President, and it only involved people who had direct communications with terrorist suspects, and was renewed and briefed to Congress every 45 days. No, it wasn't just randomly saying, "this dude is a 'terrorist', so now we can spy on this guy". There were complex sets of legal standards, innumerable justifications, and legal questions that will never be answered. Some have been answered. Some activities were found unconstitutional. That's the way our system works.
So what was TSP, then? Just something to "throw us off" from the "truth" that NSA is spying on everyone? The Director of National Intelligence just recently admitted that some NSA activities had violated the Constitution at least once. If it's truly a secret plot to spy on all Americans, for what purpose I cannot fathom, why would the DNI admit this? Wait, wait, let me guess — it's another plot to "throw us off" so we "think the government is doing something" about Constitutional violations, when in reality, it's spying on all Americans illegally, when it doesn't even have the resources to properly execute all of our foreign intelligence needs.
That sounds pretty sensible!
The oversight of the Intelligence Community is, and always has been, accomplished via:
— The Executive branch (the President, who is the ultimate consumer of US intelligence)
— The Judicial branch (the Foreign Intelligence Surveillance Court)
— The Legislative branch (the Foreign Intelligence Surveillance Act and the Intelligence Committees of both houses of Congress)
History tells us that this oversight is not perfect — it never has been, and it never will be. There have been times in our history where it has become clear that oversight was lacking. Bodies of law like FISA and the amendments to FISA in 2008 were in response to these concerns, and the need to continue to execute our intelligence missions while respecting the letter and spirit of the US Constitution and US law.
Even now, the DNI has recently revealed that certain activities have violated the Constitution at least once. What is interesting to me is the reaction that if there ever has been any abuse, or if there are any current examples of abuse, that everything must be abuse, alongside the bizarre belief that the number one priority of the Intelligence Community is to illegally spy on Americans.
People bring up examples like the Utah Data Center (formally known as the Community Comprehensive National Cybersecurity Initiative Data Center) as "proof" that NSA "must" be collecting information on Americans — what other possible reason would they build a data center in the heart of America? Indeed: why should our own military or government even have bases or offices in our own country?
Explanations like skillful lobbying by Utah politicians, cheap, empty, existing federal land in Utah, or even more pedestrian explanations like cheap power are dismissed. The United States' legitimate cybersecurity and foreign intelligence interests are ignored. No: it must be illegally spying on Americans. Never mind that the the prohibitions on US Persons are constantly and endlessly drilled into every military and civilian intelligence professional.
What reason is there to believe any government agency ever obeys the law? Could it be that most people in government are public servants who take their obligations to the law, the Constitution, and the people of the United States seriously? Certainly government is imperfect, and examples of corruption, waste, abuse, incompetence, inattention, laziness, idiocy, and more abound.
NSA has two missions: Foreign Signals Intelligence (stealing adversary communications and breaking adversary codes) Information Assurance (making sure adversaries can't steal our communications or break our codes). This is all NSA does. Other than the patent and utter illegality, what possible purpose does NSA have to spy on all Americans in direct violation of the law and Constitution?
When NSA implemented the so-called Terrorist Surveillance Program that was exposed in 2005 by the New York Times, it did not do so on its own. It did so at the explicit direction of the President, under a complex framework of legal justifications primarily tied to Article II authority under the AUMF. That was four YEARS after the whistleblowers claim NSA was "wiretapping every American" — and even that program only touched numbers of people in the hundreds, who had DIRECT COMMUNICATIONS with terrorist targets, AND was renewed and briefed to senior members of Congress every 45 days. Was it right? Is the Article II argument right? I don't know the answer to that question. The FISA Amendments Act of 2008 closed a lot of the egregious intelligence gaps the US had as adversary communications increasingly moved to the digital world.
The broader point is that even a cursory examination of what's gone on since 9/11 utterly rejects claims that NSA is "dragnet-wiretapping every American" or "keeping a dossier on every American". Mark Lowenthal said it best: the Intelligence Community has a lot more important things to worry about, and with its gargantuan size and the post-9/1
It is prohibited to collect, store, analyze, or disseminate the contents of communications of US Persons anywhere on the globe without an individual, properly adjudicated warrant. This is as clear as it can possibly be spelled out.
NSA may, however, target the communications of NON-US Persons, even on equipment and systems within the United States, without a warrant. Foreign intelligence surveillance has never required a warrant. The Constitution of the United States does not apply to non-US Persons.
Foreign communications that used to be targeted via a remote listening post, on a Navy ship sitting off of a foreign coast, or via risky foreign wiretaps, now travel through networks and systems that sometimes exist within the United States.
Tell me: how can NSA discern and identify targeted foreign traffic in the sea of all communications, including that of US Persons, traveling through US assets without being able to examine the metadata of said traffic? Therein likes the problem.
Here is where some also say that the US sidesteps the law by "buying" data from commercial providers, or by getting it from allies. Sorry, both of those activities are prohibited: the content of communications of US Persons may not be collected, stored, analyzed, or disseminated without a warrant.
Some people, apparently unaware of history or any semblance of reality, also can't accept that the United States has a legitimate interest in foreign intelligence, and that we need to conduct that mission. Why does NSA have the largest number of foreign linguists anywhere? To spy on Americans illegally?
Does all of this mean the government has never done anything wrong, that there has never been any abuse, that citizens shouldn't be watchful? No. Even the decisions made after 9/11 resulted in the warrantless wiretapping of individuals in the hundreds, thought to have direct ties to terrorism, was justified under the guise of the President's Article II authority under the AUMF, and briefed to Congress every 45 days. Now someone who hasn't been at NSA in over a decade claims that there is a "dossier" on every American, with no proof...and completely ignores the primary function of NSA, which is foreign signals intelligence, and you swallow it as unvarnished fact?
This is puzzling to me.
Ars on the story: WSJ mangles history to argue government didn't launch the Internet
No. You can't sidestep the law and obtain the content of communications of US Persons by "buying" or otherwise obtaining it from commercial entities, or from allies.
However, things like you're talking about, such as bank records, are not communications content. They and other similar things are covered by entirely different bodies of law some of which may, or may not, require warrants. That said, if something DOES require a warrant, the government is not allowed to buy it from a commercial entity that can collect it, or obtain it from allies with whom we share intelligence. That's not the way the law works.
China doesn't want to cooperate. They are waiting their "turn" to be "#1".
They have increased military spending 12% each year for the last 12 years, and are on track to exceed US military spending by 2020-2025. Is this for "peaceful regional defense"?
Do you think the world just errs toward freedom and liberal democracy with nothing being done to promote either?