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Michael Brenner Headshot

Obama's NSA "Reform" -- Another Shell Game

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President Obama last week stated his attention to recommend to Congress some small modifications in the NSA's current modus operandi re: metadata collection. It has received a warm reception from those critical of present practices. There are slim grounds, though, for high expectations. Indeed, if acted upon by Congress, they likely will have little practical effect on the Agency's access to, and use of electronic communications. Here's why.

1.The proposed changes apply only to telephone messages - not email, social media, video cameras, internet searches, etc.

2. Setting an 18 month as the standard time period for telephone companies' retention of data is meaningless -- for two reasons. First, they would retain the right to "voluntarily" hold the data for as long as they wish. Second, currently the NSA is overwhelmed by the billions of communications they register and try to catalogue each week. Long-term data retention only makes sense if there is a project afoot to exploit it systematically in order to control, to suppress, to penalize. There is no such Big Brother plan in place or on the horizon -- neither a J. Edgar Hoover nor a Stasi chief. NSA operations fortunately have instead been conceived and managed by fantasists and bureaucratic empire builders -- and, as is demonstrated by Edward Snowden's leaks of their immense target list and their major intelligence failures (e.g. Russia's actions in the Crimea, the Egyptian military's moves), they are not particularly competent.

The NSC certainly is competent about playing the games of bureaucratic and Congressional politics to further its organization interests. And certainly it has some brilliant technical minds -although apparently none as smart as Snowden. Moreover, their public relations work is first-rate -- as witness their success in persuading the country that this outsized and directionless juggernaut is critical to defending America from the Evil One -- i.e. "Terror" whose very modest concrete forms pale by comparison with the awesome images conjured by our leaders. What the NSC does not have is intelligent design, guidance or monitoring. The same can be said about its brother in counterfeit arms, the CIA.

3. Data storage by companies rather than the NSA is inconsequential since the NSA requests to the FISA courts for a warrant to access the information are granted automatically. Over the past eight years, only11 of 33,900 requests have been refused. The judges, by the way, are handpicked by Supreme Court Chief Justice John Roberts who has jumped into the policy arena by declaring himself strongly opposed to any tightening of restrictions on how the court operates or on the NSA methods.

4. Moreover, the definitions of "terrorist" related persons or organizations are so elastic as to give the Agency open sesame. The burden of evidence justifying the granting of a warrant is so light as to be almost weightless.

5. The parties to be monitored may be organizations or associations -- thereby yielding a large inventory of calls, The NSA might well identify an organization as the party whose phone records are needed, e.g. an Islamic association, a publication. Communications from everyone dealing with them thus become available. When we add the "two-hop" rule whereby the government has a right to access the records of X3 who spoke to X2 whose calls with X1 have been approved for monitoring, the insignificance of the proposed restrictions become obvious.

Let's look at one hypothetic scenario. The NSA requests approval from the FISA court to collect the communications of the Arab-American Civil Rights League on the grounds that they suspect some dubious characters have been using its facilities. Over a period of months (is there a restriction on the duration of electronic surveillance under FISA rules?), they register 1,000 communications. Using 'first hop' privileges they identify 250 persons whose own communications they wish to tap. Using "second hop" privileges they next identify a total of 1,500 more people whose communications they wish to tap. That makes a total of 2,700 persons whose telephone calls they are monitoring and storing. Each year, the NSC requests warrants from the FISA courts about 500 times. Hence, we can project more than 1 million telephone numbers now under surveillance for an indefinite period of time. For we should further note that once an official investigation is begun the records acquire the status of legal documents in a judicial or quasi-judicial proceeding.

6. The significance of last week's Obama proposals is also undercut by our close collaboration with the four English-speaking allies who undertake electronic surveillance of their own. Britain's GCHQ is particularly active and technically advanced. They and the Australians, moreover, operate with only nominal oversight. That means that the NSA is privy to whatever communications they acquire and store. Some may well entail Americans who are exchanging some form of messaging with persons and/or sites outside the United States. This appears to be a legal grey zone. It is a very wide zone given the density of communications that overlap national jurisdictions and the implications of the "two hop" rule. GCHQ passes on the contents of a telephone call between a U.S. citizen and someone abroad, thereby allowing the NSA to pursue contacts of that American in the US twice removed.

We have created a monster. A Great White Whale that rapaciously stalks the electronic seas devouring all within reach regardless of species or nutritional value.

Finally, there is no credible party within the Executive branch or outside it to oversee implementation of any restrictive rules -- old or new. For at least twelve years, neither the Department of Justice, the federal courts nor the Congress has shown the will, aptitude or conviction to even attempt doing so.