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2. Why all the effort to collect information if it is not being used?

NSA program critics have consistently pressed the question of why our security requires the gathering of astounding amounts of data, well over 99 percent of which pertains to innocent people who have absolutely nothing to do, even inadvertently, with terrorism. In Monday morning’s discussion, Glenn cast the argument in a very persuasive appeal to common sense: Why would the government, at great effort and expense, create a cavernous data farm in Utah if the purpose were not to peruse the data? Surely we are not merely storing communications information just to destroy it, right?

To be blunt, the national security right’s response to this basic, entirely reasonable line of inquiry has not been effective.

In part, this is understandable. At issue is a highly classified intelligence program. Many of its defenders – very much including me – are not privy to the top-secret details of the effort. Those who are in the know have a dual quandary. As Glenn graciously took pains to point out, government officials like Michele who are read into the programs are duty-bound not to discuss even details that have leaked into the public domain. Even more significantly, to explain why the NSA needs to collect everyone’s information in order to detect terrorist activity is necessarily to provide a window into exactly what the NSA is doing. That, in turn, provides terrorists with a roadmap for developing effective countermeasures.

Because of this, most of the national-security right’s case has been devoted to the legal propriety of the program. After all, that is the part we know best, the ground on which we are most solid. A person has no Fourth Amendment protection regarding communications records that are the property of phone companies and other service providers. A non-American outside the U.S. has no constitutional protections at all. Therefore, the argument goes, what we’re doing is legal, so don’t worry about why (since why is too hard to discuss – see above).

This is very unsatisfying. First, the state of the law is widely unpopular, so being on the right side of it doesn’t help much. And for all their talk about being “constitutional conservatives,” libertarians are enamored of the progressives’ “organic” Constitution when it comes to the Fourth Amendment. They have swallowed whole the judicially invented “expectation of privacy” deviation from the original Fourth Amendment’s moorings in the concepts of personal property and trespass. If it were worth winning a legal argument rather than a policy debate, I might ask Glenn where exactly in the Fourth Amendment’s “right of the people to be secure in their persons, houses, papers, and effects” he finds phone records that are the property of third-party service providers and the communications of foreigners who are obviously not “the people.”

But as Governor Chris Christie might concede, this esoteric point does not get us NSA defenders very far. For better or worse, most Americans have internalized the “expectation of privacy” contrivance; they now believe the Constitution gives them enforceable privacy rights in the property of others if it reflects on aspects of their personal lives. More importantly, the Fourth Amendment was never the end of any privacy argument anyway. It merely defines the minimal ambit of privacy government must respect. It has never meant that there can be no supplemental privacy protections – just that such protections must be enacted by Congress (which is preferable to the having the courts make up a new Fourth Amendment as we go along).

So to say that the Fourth Amendment does not protect the data captured by the NSA programs is not to say that the data should not otherwise be protected. And, indeed, Congress has enacted protections, as discussed above: e.g., the government may collect liberally, but it may not inspect without judicial oversight.

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Top Rated Comments   
Profile and surveil Muslims. There is your haystack right there.

1 year ago
1 year ago Link To Comment
You know, the British felt that they needed a haystack to find the needle, too. They wrote blanket warrants allowing their agents to search for contraband in any house they felt might harbor it. This is where the 4th Amendment came from, directly.

If you can't see the parallels here, then you have a problem.
1 year ago
1 year ago Link To Comment
Just a couple of points:

(1) Settled law is that you have no "privacy interest" in the business records of third parties. That seems reasonable at first blush, but in reality a lot of these "business records" are actually records that the government requires the businesses to keep that they would not even bother to keep otherwise. CALEA was responsible for a lot of this. For example, the telecoms really didn't want to keep records about what cell towers were used to transmit what calls. They had no use for that information, but the government did because it could pin down a caller's location. And in these days in which there are plans where customers have unlimited calling for a set fee, why is it that they would even bother with the expense and trouble of keeping records about who, when, and how long anyone talks on their service? They don't. The government requires them to do so.

Its a sham. The government effectively is requiring third parties to conduct surveillance on folks that the government could not do if they were required to obtain a warrant. They are using legalisms to effectively circumvent the Fourth Amendment.

Suppose the government required all property owners to maintain 24 hour surveillance cameras which would capture the view outside of their property, and would record it. They wouldn't have to do this, but failure to do so would subject them to a tax, (kind of like Obamacare "taxing" you if you don't have health insurance). It doesn't affect your privacy because it faces outward. And when the cops come and tell your neighbors to hand over their tapes that were viewing your property along with a court order forbidding them to mention to you or anyone else that they did so what possible harm could come of that? Its a third party business record. Right.

And then there is the boot strapping. The license plate readers are a good example of that. They can be used to compile a detailed description of everywhere you go and when you went there. As the saying goes in regard to this, one has no expectation of privacy in regards to what they exhibit in public, so you have no right to object to the authorities keeping such records. But wait--the only reason your vehicle has license plates to begin with is because the government requires it. You have no privacy because they require that you have no privacy.

(2) What is the point to it? There is one word that describes 99% of the terrorist threat: Muslims. Don't let them come into the country. Its really that simple, except for the ones we have already let into the country and given citizenship. But the government won't stop them or anyone else from coming in. If they were really serious about stopping terrorism they would be doing just that. But they don't, and they won't.

Look at the Boston bombers. If the government doesn't really take it seriously why should I? And why should my privacy be compromised? So that they can quickly identify the culprits AFTER the terrorism has happened? And that gets the dead people what?

(3) The refrain from the people who avidly support a surveillance state is typically "What do you have to hide?" My short reply would be that if you have to ask that question you are probably mentally or morally incapable of understanding the answer.

Most people despise window peepers. You know-- those folks who come up at night and peer in your windows. Or the people who drill a peep hole through a wall into a women's restroom or shower. Come on, they aren't hurting anybody are they? How can anybody who doesn't have something to hide object?

But people do object, and in most jurisdictions window peeping is a crime. Its not about whether anybody has something to hide, its about the peepers being moral scum. There's something inherently wrong with them and most people feel this instinctively. This is a great gap between a situation where someone who the authorities have probable cause to investigate is put under observation and giving compulsive window peepers badges and a license to peep. But after all, it might be for the greater good. If they're taught to recognize the outward signs of skin cancer their observations of your wife while she's taking a shower could save her life. And, as that repulsive, rotten saying goes: if even one person is helped by this it will be worth it. Sure.
1 year ago
1 year ago Link To Comment
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All Comments   (77)
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The NSA is in gross pursuit of unConstitutional power. It is set up to attack secondary pursuits which would NOT be necessary if the underlying primary considerations were acknowledged and addressed instead, including:
- Islam is the enemy. NOT "terrorism", NOT "islamic terrorists", NOT 'fill-in-the-blank-with-the-latest-progressive-semantic-definitional-game'.
- All immigration of Moslems must be stopped immediately.
- All Moslem immigrants to this country must have their visas revoked immediately, and given 24 hours to leave the country.
- All Moslems in this country that are "American citizens" should be considered to be the same as Communists. They should be forced to take a loyalty oath, at the same time denouncing all forms of jihad and taqqiya, and swearing their first allegiance to the Constitution.
- If a Moslem refuses to do the former, then he/she must be deported, along with any children. A reasonable compensation can be given for their property, but otherwise they must leave.
- The 'War on Terror' is an excuse to exact control on ALL Americans. If you are conservative, you can now be considered a terrorist as a result of the so-called War on Terror. Do you think I'm over the top? Please carefully consider the latest IRS scandals, the underlying rationale to 'Fast and Furious'.
- I am a traditionalist and decentralist conservative, and I tell you now that Snowden is a hero... you had better think carefully about what it takes to oppose this government.

Please wake up... you are living in a leftist tyranny, and there are no conventional options left. If you don't realize this, you exist in a dreamworld.

You must accept, believe, and fully embrace the following if you ever hope to do anything other than read and comment on tepid blogs like PJMedia...

Equality is theft.
Religion is politics.
Reality is racist.

Primary versus secondary... what is really important?
Good luck.
1 year ago
1 year ago Link To Comment
Mr. McCarthy,

The issue with the NSA surveillance is that data mining today _is not_ a straight line projection to tomorrow. What ever the NSA can’t find now with today’s data mining techniques doesn’t mean they won’t tomorrow or next month or next year.

“Total Information Awareness” requires total information control, which is why the NSA went to the FISA court to get a complete copy of all US domestic internet and phone activity for their files from all the major Silicon Valley internet firms. The NSA has access to _everything_ in terms of domestic and foreign communications metadata passing through the major American internet & cellular companies via FISA Court Order.

IOW, the NSA has a data mining time machine for your life on-line, and the lives of every other American, starting from several years ago. And the NSA has the budget to store it all.

That massive data cache is potential blackmail material that makes the "Hoover files" look like a wet firecracker compared to a 50 megaton thermonuclear device.

That is power that will be abused at the expense of American individual liberty by the rest of the Federal government.

And what the NSA can do now with $50 to $500 million in software and hardware will be a off-the shelf $50,000 to $500,000 software and software seven years from now.

Consider the implications of that thought. Especially in light of the massive corruption possibilities provided to the guardians of the NSA data centers via providing selective access to the data.

My real short term fear regards the NSA metadate data warehouse is the Secret Service NATIONAL THREAT ASSESSMENT CENTER (See: using NSA metadata intercepts to very broadly and unconstitutionally "predict and prevent threats to the President".

The Secret Service is not limited by FISA Court warrants or Congressional oversight in identifying and dealing with "possible threats" to it's protectees.

The possibility of the Secret Service people in charge using the NSA metadate warehouse for "predictive software threat assessment data mining" being as morally suspect as the local prostitute using Cartagena, Colombia Secret Service advance team is very real.

The National Security Right's plain ignoring of that threat is why it has lost the Tea Party wing of the Republican Party.
1 year ago
1 year ago Link To Comment
There seems to be a running theme here: that our intel services can somehow investigate "only" the terrorists, and not innocent people, because they somehow already know who the terrorists are.

And how would they know that?

It would be like telling a doctor that screening for cancer can only be done on patients with cancer, or telling an air defense crew to ONLY turn the radar on enemy aircraft. Never on other aircraft.

"How do we know there are enemy aircraft?"

With the radar.

"So can we turn in on?"

No! Only if you've spotted an enemy aircraft!

There's a logic problem in there somewhere.
1 year ago
1 year ago Link To Comment
The debate is already lost Mr. McCarthy. Only elitists of one flavor or another will argue that the NSA programs are justifiable, legal, or ethical. The act of defending the NSA programs negates denial of those appellations.
There is no necessity for collecting that much data in the first place. The government does not have to collect the megadata of all Americans to find and keep track of a few terrorists. Only a very small percentage of 330 million Americans are even a mild threat to the nations security - and that includes most progressive Democrats. How many jihadis, Muslims terrorists, or terrorist of any kind for that matter are actually in the US? The few that exist and their sources are known. Acknowledging who is the enemy, and applying judicious profiling will reveal and deter the vast majority of them. The only thing collecting all of that data on everyone guarantees is that it will be abused. Stop looking in haystacks and check out the Mosques.
McCarthy’s examples are flawed in magnitude and type. Turning the military against us for example, is a whole different manner of (age old) threat compared to “leaking” information on a political opponent to the White House, or keeping tabs on subversives like veterans, tea partiers or what ever the terrorist threat de jour, and passing that information on to the civilians in “control” who can then direct the military who to pick up, or which groups to suppress. Ongoing events as well as history have demonstrated the ineffectiveness of checks on corrupt officials’ inclination and ability to abuse their power. Domestic abuse of the regimes military power is overt. We will see the tanks coming. Invading a citizen’s privacy through surreptitious observation and theft of their data is covert. The citizen wont see the effects until too late.
Another McCarthy argument that separation of power will prevent government abuse is risible in view of the actions of the current regime to date. He attempts to allay our suspicions by pointing out that the NSA programs were actually started by Bush and thus are full of safeguards built in by the anti-Bush democrats. So what? The safeguards are only as good as anyone is willing to abide by them. Ignoring or circumventing them is relatively easy.
Justifying the unjustifiable by envoking a flawed ruling that since you share your (phone) data with the phone company in order to get service, that data is no longer private is very unsatisfactory. That point does not make Mr. McCarthy’s or the government’s case. It merely draws attention to existing legal flaws and circumventions that already exist as backdoors to our privacy.
1 year ago
1 year ago Link To Comment
"Only a very small percentage of 330 million Americans are even a mild threat to the nations security - and that includes most progressive Democrats."

Wonderful news! Who are they, and where do we find them?
Should be simple. If they are so few, just point them out and...

Intel doesn't work that way. Remember Mission Impossible, where every mission starts with this file packed with info on the bad guy?

"Good morning Mr. Phelps. The man you are looking at is international drug smuggler Rocco Badguy. He lives in a house in El Punkador, here are the plans so you can make a copy so exact even he won't be able to tell them apart. He wears size 36 underwear."

No. Doesn't work that way. Before you know who the villain IS, you have to find the villain.

And yeah, that involves looking at a lot of people who are not the villain. It's the ugly truth, but that's the way it is.

Remember, the spooks are doing what police cannot: Investigate BEFORE, not after. Totally different. Right up until the bombing, Dzhokhar Tsarnaev was an innocent citizen.
1 year ago
1 year ago Link To Comment
I have even better news for you: the FBI said there was nothing they could have done to prevent the Boston marathon bombing - even though they were tipped that the brothers' might be bad boys.
Where was the NSA? Gosh with all of that metadata they should have been able to give the poor FBI a hint - oops, they already had a hint. Maybe they coulda shoulda done something. Nope, that would have been profiling peaceful Muslims. It is easier to hassle and spy on innocent Americans than to profile a self identified enemy.
In any neighborhood, the neighbors and police can tell you who the bad actors are. They can tell you more accurately than all of the metadata that the Utah facility can hold. Massive amounts of metadata is circumstantial at best, and dangerously misleading at worst; it is a foolish distraction for the purpose touted on the order of Hitler's secret weapons.
The danger that the underlying data will be misused far outweighs any imagined benefit it will bestow.
Spooks have always done what the police cannot - until the US decided to hold them to the same rules as the police - except when spying on innocent citizens.
The best you can say is that metadata collection and mining could be a useful tool. But it is not a necessary tool, or the best tool.
1 year ago
1 year ago Link To Comment
IOW, the author is groping for an excuse to trash the 4th prohibition on seizure in the hope that government, normally a dangerous threat to liberty, will not abuse it. What security does a person have in their papers and effects if they are broadly seized as a matter of course? The constitution was written because promises from government on such matters aren't worth the paper they're written on. Don't forget that!
A government that will do what the IRS and now apparently the FCC did to conservative groups would edit what it had seized to make a case against its enemy, ESPECIALLY a domestic/political one. THAT is exactly why the 4th was written the way it was.
The author must realize he is groping and admit that, because he is groping, he is trashing the constitution without cause or he wouldn't be groping in the first place.
1 year ago
1 year ago Link To Comment
As someone who has been around computers since the late 70's, I often wonder how China's technology and industrial base advanced about 50 years in the last 15-20. When the Soviet Union collapsed, all they had were copies of the 1970's MOS 6502 and a fatally flawed copy of the Intel 8080 series.

Guess what? Everything they're storing in that giant data center in Utah will most likely end up there too.
1 year ago
1 year ago Link To Comment
Jaycen said: This isn't paranoia. It's science. It's math.

Well, but that cuts both ways. There's a geeky mathematical argument here which I think is the real answer to McCarthy's questions, which is that the WHOLE body of data is worth more than the sum of its parts.

You must save everything now, because you don't know what you'll need later. Is this in direct violation of the spirit of the fourth amendment? Well, yes and no. In theory, no, in practice maybe.

I assume (now, and always have, that) everything I do in cyberspace, and that now includes the telecom system, is spied on for technical, commercial, and security reasons, and if someone wants it badly enough even a few years later, they can get it.

This is different than how things used to be.

Maybe it's not necessary that things be this way, but also maybe it's not the disaster than it might seem from a generation ago. Remember how so many people dump their lives in plain view on Facebook, and shout all sorts of personal information into their cell phones as they walk down the sidewalk. People's expectations of privacy are CLEARLY not what they used to be. Plus, everyone walks around all day with a camera and "walkie talkie", could anyone imagine such a world circa 1968? Not to mention businss and police cameras on every storefront and every corner and every crusing police car and bicycle and flying drone.

So at least I'm not easily upset by any of this, ... yet.
1 year ago
1 year ago Link To Comment
Strongly disagree. The fourth is supposed to ensure the security of persons, properties, papers and effects. There is no security when their is seizure as a matter of course.
Are you unaware the media tried to edit evidence? Are you unaware that the IRS and FCC used the power of government to go after political enemies? Put the two together, give them a this data to massage and you have an evidence trail that leads to guilty... of something when you become an enemy of the state of a mere political stripe. IT IS happening already. How can you honestly separate what the NSA is doing and the other agencies' shenanigans? It would be like accepting a shake from the right hand while being stabbed in the back by the left and not being able to make the connection. Your trustworthiness is misplaced.
1 year ago
1 year ago Link To Comment
Are you aware that it's been settled law decades that the police do not need a search warrant to secure telephone calls records, record to/from information on mail, conduct normal visual observation from an aircraft or record foot and vehicle traffic with cameras?

Current NSA practice, and the few techniques cases of FBI use of drones which cause Sen Paul to squawk, are just developments of these practices using current technology.
1 year ago
1 year ago Link To Comment
It's called insidious government intrusion. It happened without as you would call "awareness". So, because the people slept while government was encroaching, we should roll over and submit to more???? And then more and more and more.... Asinine.
1 year ago
1 year ago Link To Comment
Your response is ethical, not moral (ethics are for people without morals).

Ethics are the endless lists of excuses people make up to ameliorate the gact htat they've decided to break the Golden Rule of Law and attack innocent others first.

Just identify the main criminal enemy as islam, and get warrants.

These warrantless spy programs only slanderously pre-judge all American citizens as guilty until never proven innocent, and fraudulently accuse them of crimes without any evidence to do so, so they are not really valid laws at all, but are crimes in themselves.

i.e: "I'm going to illegally spy on you because I can't trust you, and I judge you Guilty Until Never Proven Innocent, but if you've done nothing wrong and so have nothing to hide, then you'll just have to trust me to judge you fairly, even though I haven't and so I won't."

Seems to me 0bama wants to have rights without responsibilities; and in fact, he wants to have the false right to remain irresponsibly wrong, while forcing the rest of us to have the only responsibility to become right, or to really only have responsibilities without any rights.

"The government" has no right to spy on the people, simply because "the people" has no right to spy on "the people," either!

The social contract which exists between the government and the people is the same as that between all people, and is based on the Golden Rule of law which simply defines all situational morality as Do Not Attack First. From this, our only real right, is to not be attacked first, and our only responsibility is to not attack (thereby innocent) others first.

And all sub-sequent laws, rules and regulations are based on this principle - Every law is an if/then warning which says, in effect: If and when you choose to attack first in this, that, or those ways, then this, that, and these punishments will apply to you.

Bad laws are slanderously “pre-emptive” first attacks, like all gun control laws:

“Since you DO own a gun, therefore you WILL use it to commit some crimes, SO we must now stop you by ‘defensively’ attacking you first – for your own good, of course!” There’s no if/then; they are threats, not valid warnings. Pretty much every “law” any liberal ever passes, is some form of extortion like this.

Besides their illegality, such false "laws" are also inherently functionally impracticle: (will these law-enforcement imbeciles never learn?)! If they can tap into communications at will, with no warrants, subpoenas, nor judicial oversite required to limit the duration of their invasions of privacy, then NO evidence gained that way will ever hold up in any court of law, because without a judge saying "OK, you can tap this device starting NOW, and then end it when I say so," it will always be possible for the law enforcers to have previously planted the (thereby suspect) "evidence" them selves! No such "evidence" is beyond reasonable doubt!

1 year ago
1 year ago Link To Comment
A secondary consideration for my conservative, and Libertarian friends.
The US government is collecting every Byte of data created everywhere on the planet. They have the capacity (soon) to store it for 100 years. Believing anything else is fantasy.
1 year ago
1 year ago Link To Comment
Andy says, " First, all power can be abused".
There is the rub Andy. I do not care if 3000 more of my fellow citizens die...even if it includes me, my grandchildren, and kids!
We are not a police state - we can do this without the NSA, and/or their tactics.
This technology should be deployed against our enemies, not our citizens. All this NSA stuff is because our lawmakers are bowing to islam - and that is NOT another discussion. It is the reason.
Political cowardice = a police state for us? B*LLSH#T!!
Find another way.
1 year ago
1 year ago Link To Comment
The NSA was developed during the Cold War, and considering how long it operated, it seemed to work to some extent in putting down Communist infiltrators.

And I wouldn't even say its because they are bowing down to Islam, but also to Socialism (Don't forget, in both Clinton and especially Obama's regimes, they frequently allowed for Socialists/Communists to work freely. Heck, in Clinton's case, he even freed several FALN terrorists, and those obviously weren't Muslim). If it weren't for the NSA and the other groups, the entire world most likely would have become Communist since after WWII, including us. Heck, the FBI even managed to catch Bill Ayers and several Weathermen Underground members.

However, I do agree the NSA's current actions are suspect.
1 year ago
1 year ago Link To Comment
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