The same spirited defense of wartime executive power also informed the debate over the PATRIOT Act, very much including its controversial business-records provision — Section 215. Records of subscriber usage maintained by service providers such as telephone companies — called “third-party” records because they are the property of the provider, not the subscriber — enjoy no Fourth Amendment protection. They have always been freely subpoenaed, with virtually no judicial oversight, by law-enforcement agents exercising the executive branch’s police powers. The objective of the PATRIOT Act was to vest equal investigative authority in national-security agents (the FBI’s domestic-security division), on the theory that protecting our country from mass-murder attacks was a higher priority than probing, say, a run-of-the-mill check-kiting scheme…
The NSA is in hot water again, but it is not doing anything different from what it was doing in the Bush years — under the authorities Republicans and conservatives won in the bruising battles over reauthorizing the PATRIOT Act and overhauling FISA. It is still collecting telephone-usage records (“metadata”) on millions of Americans (though not the content of their conversations). It is broadly targeting the communications of non-Americans outside the United States for surveillance — though some domestic American communications may inadvertently be picked up because the surveillance involves vacuuming up traffic as it zooms across U.S.-based servers.
What the NSA is doing, however, will come as no surprise to readers of my “Devlin” books, which chronicle the exploits of an extremely disaffected NSA/CSS (Central Security Service) operative who just so happens to be their most lethal weapon. Devlin is so secret that his very existence is known only to three people in the need-to-know loop: the president, the secretary of defense, and the NSA director himself, who just so happens to be his adoptive father. Here’s an excerpt from the second book in the series, Early Warning (2010), whose original title was to have been Black Widow:
No Such Agency was founded by President Truman in 1952 to both collect and decode foreign signals (SIGINT) and to protect America’s codes from hostile code breakers. The Second World War had made both encryption and cryptanalysis boom industries, and a wide variety of codes had been employed, everything from the Germans’ “Enigma” machine — named after the series of musical variation by the British composer, Sir Edward Elgar, to the Navajo “code talkers” who had worked for the Marine Corps in the Pacific theater.
Still, in the end, code-breaking was all about patterns, even if those patterns were sometimes so deeply hidden that they resembled wheels within wheels, whose sprockets had to be carefully aligned for the message to be read and understood. Today, the volume and the magnitude of the threat was infinitely greater than it had been 75 years ago — one missed pattern and the next thing you knew there was a smoking, radioactive crater where midtown Manhattan or the Washington Monument had once stood. Which is where the Black Widow came in.
The Black Widow was the in-house nickname of the NSA’s Cray supercomputer at Fort Meade. Forget privacy — no matter what the sideshow arguments in Congress were about the FISA laws or civil liberties, the Black Widow continued to go remorselessly about her job, which was to listen in on, and read, all telephonic and written electronic communication, in any language, anywhere in the world. It was the old Clinton-era “Echelon” project writ large, able to performs trillions of calculations per second as it sifted and sorted in its never-ending quest for key words, code words, patterns. The ACLU had screamed, but presidents from both parties had surreptitiously embraced it. The Black Widow was here to stay, little Miss Early Warning, if only she could be heeded and translated in time.
Wiretapping had come a long way. In the popular imagination — and in the minds of the media, which to judge from the op-ed pages of the New York Times, now viewed everything through the lenses of bad movies and show tunes — “eavesdropping” still conjured up images of fake telephone repairmen in jump suits, shimmying up phone poles or cracking open service boxes in the sub-sub-basement and applying alligator clips to the switching machinery. Congress, only slightly less obtuse than the media, played along, and continued to debate and pass laws having to do with “warrantless wiretapping;” there was even a court, a vestige from decades earlier, that solemnly heard evidence in camera and then gravely debated whether to issue warrants.
None of that mattered any more. It was all for show. the Black Widow not only heard all and read all, she could sense all: the technology had advanced to such an extent that the Widow and other Cray supercomputers like her — including the Cray XT4, known as the Jaguar, and the MPP (massively parallel processor) housed at the University of Tennessee — could read the keystrokes of a given computer through the electrical current serving the machine. And all linkable. If the Singularity wasn’t here yet, it would be soon.
You can read more about Early Warning and the other books in the series —Hostile Intent and Shock Warning — here. I’m at work now on the fourth installment of the series, which will take Devlin and Maryam in an entirely new direction. Stay tuned.