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The Future of Surveillance in a Post-Snowden World

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SNOWDEN
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Michael V. Hayden, former director of the National Security Agency and the Central Intelligence Agency. The following comments are adapted from his talk at the George Mason University's School of Public Policy on Feb. 28 for the National Security and Foreign Policy Lecture Series. A retired U.S. Air Force four-star general, Hayden is also a distinguished visiting professor at George Mason. Hayden provided a very thought provoking discussion on "The Future of Surveillance in a Post-Snowden World."

This article is prepared by General Hayden in consultation with Patrick Mendis and Joey Wang.

THE SNOWDEN EFFECT: Edward Snowden has accelerated a necessary and inevitable debate in American society regarding surveillance. In the course of doing so, however, I believe that Snowden has badly shaped this debate and, in the course of this acceleration, created a media frenzy that is largely focused on headline-grabbing sensationalism rather than speaking to the hard facts.

If the information compromised by former CIA officer Aldrich Ames and that of the former FBI agent Robert Hanssen can be compared to pails and possibly barrels, Snowden has ripped out the entire plumbing because in the course of conducting his espionage, Snowden has revealed far more than sensitive intelligence. He has revealed sources and methods, that is, the methodology by which the U.S. conducts its electronic eavesdropping. As a consequence, Snowden has compromised an entire generation of investments in U.S. tactics, techniques, and procedures. He represents the single greatest hemorrhaging of legitimate American secrets in the history of the Republic.

Snowden has added a significant amount of drama to the debate. Indeed, whatever beliefs he may have had as the defender of privacy, his assertions and revelations have been inconsistent with his overall effort. Well over 90 percent of what Snowden has revealed has had nothing to do with Americans' communications. Rather, Snowden has compromised how the U.S. goes about collecting the communications of non-U.S. persons who are, in fact, legitimate intelligence targets; these are some of the most important aspects of intelligence tradecraft.

At the intersection of these revelations and the media frenzy it has created; the "Snowden effect" has been press coverage that is far less "reportorial" than "prosecutorial," in which a great number of articles are written in an accusatory tone.

Let me dispel some myths spun by Snowden and the media coverage of him:

For example, Section 215 of the USA Patriot Act is only concerned with the collection of telephone metadata. No content of any communication is collected. Contrary to popular belief, it does not mean that your entire life is in the possession of the National Security Agency.

According to Title VII, Section 702 of the Foreign Intelligence Surveillance Act, the NSA could obtain approval and access to email accounts only through a generalized court order citing someone as either a "terrorist, or proliferator, or a cyber-threat". However, contrary to popular belief, at no time did NSA ever have the authority to "free range" within mail servers such as Google, Yahoo, or Microsoft.

Understanding such details matter. So much of the debate provoked by Snowden's actions has been conducted as if by competing bumper stickers.

FUTURE THREATS: During the Cold War, I never lost any sleep worrying about some religious fanatic living in a cave in the Hindu Kush. The industrial age trended to strengthen the power of the state, and the ability to perpetrate violence on a massive scale was centralized with the state. In those days, electronic surveillance was carried out against state actors such as the Soviets and their strategic rocket forces. No civil libertarian ever cared about those communications on a limited, state controlled network.

The post-industrial age, however, has decentralized and pushed this power downward to the individual, enabling those who intend to do both good and evil. As a consequence, our personal communications are now coming with legitimate foreign intelligence targets. There is simply no way around it, and no way to separate it.

There is also the question of the volume of modern communications. In order to find the emerging threats in this ocean of data, the NSA has had to resort to bulk collection as the only way data can be analyzed for patterns of emerging threats and legitimate foreign intelligence targets can be identified and isolated for intense collection.

In the end, neither the NSA nor the CIA wants to do things that are not consistent with the consensus view of American values. Our intelligence agencies must, and will, accept any delimitation defined by the American citizenry.

Tell me where the lines are. Just give me that political and legal guidance, and we'll go play hardball. We'll stay inside the box. At the same time, we will have to say "this will make you a little more comfortable, and it's going to make you a little less safe." We get it, but let's shake hands on that last part -- "a little less safe."