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NSA Mass Surveillance is Criminal

Jennifer Stisa Granick (director of civil liberties at the Stanford Center for Internet and Society) and Christopher Jon Sprigman (professor at the University of Virginia School of Law) make a point in their NYTimes Op-Ed, “The Criminal N.S.A.“,  that I have not seen from many others: “It’s time to call the N.S.A.’s mass surveillance programs what they are: criminal.”

To date, most arguments I have come across claim that what the NSA is doing should be illegal, but currently isn’t (at least for reasons currently unknown to me). The other argument I’ve seen a lot on the Internet is citizens crying foul that the government would ever be able invade their private space (somehow ignoring the provisos of the 4th Amendment).

Granick and Sprigman’s article is worth pointing out because it argues that what the NSA is doing is currently and has always been illegal, while also acknowledging the provisos of the 4th Amendment.

Unfortunately, the opinion piece itself is lacking some grit, which I find frustrating as it seems to drag on without adding more substance. Here are the relevant points:
From www.nytimes.com:

Congressional watchdogs – with a few exceptions, like Senator Rand Paul, Republican of Kentucky – have accepted the White House’s claims of legality. The leaders of the Senate Intelligence Committee, Dianne Feinstein, Democrat of California, and Saxby Chambliss, Republican of Georgia, have called the surveillance legal. …. This view is wrong – and not only, or even mainly, because of the privacy issues raised by the American Civil Liberties Union and other critics. The two programs violate both the letter and the spirit of federal law. No statute explicitly authorizes mass surveillance. Through a series of legal contortions, the Obama administration has argued that Congress, since 9/11, intended to implicitly authorize mass surveillance. But this strategy mostly consists of wordplay, fear-mongering and a highly selective reading of the law.

Legal issues with the PATRIOT Act :

The government claims that under Section 215 [of the PATRIOT act] it may seize all of our phone call information now because it might conceivably be relevant to an investigation at some later date, even if there is no particular reason to believe that any but a tiny fraction of the data collected might possibly be suspicious. That is a shockingly flimsy argument – any data might be “relevant” to an investigation eventually, if by “eventually” you mean “sometime before the end of time.” If all data is “relevant,” it makes a mockery of the already shaky concept of relevance.

Legal issues with the FISA Amendments Act (FAA):

Like the Patriot Act, the FISA Amendments Act gives the government very broad surveillance authority. And yet the Prism program appears to outstrip that authority. In particular, the government “may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.”

The government knows that it regularly obtains Americans’ protected communications. The Washington Post reported that Prism is designed to produce at least 51 percent confidence in a target’s “foreignness” – as John Oliver of “The Daily Show” put it, “a coin flip plus 1 percent.” By turning a blind eye to the fact that 49-plus percent of the communications might be purely among Americans, the N.S.A. has intentionally acquired information it is not allowed to have, even under the terrifyingly broad auspices of the FISA Amendments Act. […] James R. Clapper Jr., the director of national intelligence, told Andrea Mitchell of NBC, the N.S.A. uses the word “acquire” only when it pulls information out of its gigantic database of communications and not when it first intercepts and stores the information.

Why what the NSA doing is illegal:

The Fourth Amendment obliges the government to demonstrate probable cause before conducting invasive surveillance. There is simply no precedent under the Constitution for the government’s seizing such vast amounts of revealing data on innocent Americans’ communications.

I’m Getting Married

Note: this is a cross-post from: AndrewAndRachel.com

We’re all here in Bozeman, getting everything ready for tomorrow. The rehearsal is later today, where we can iron out the last kinks before we’re go for launch.

A couple of things to pass along:

See you all tomorrow!

How to Defeat Terrorists

I was having dinner with family and some good friends, one of whom is an engineer several scores my elder. One of the topics that came up was how engineers see the world differently. This can be a potentially prickly question, especially since engineers are often considered to lack adequate social skills.

I have always been a “glass is twice as big as it needs to be” kind of guy — neither optimistic nor pessimistic…things just are.

The Boston Marathon Bombing a month ago was a horribly tragic event. In the aftermath, I felt powerless. I was scared that I no longer had sufficient control or predictability in my life, that at any moment a bomb may go off and I would be the one killed.

As I let that sit, the conclusion my mind settled on is remembering that life is unpredictable. We can guess what will happen next with relatively good accuracy. And for everything else there is typically various forms of redundancy.

In the end, things just seem to work. Except when they don’t.

Redundancy provides a statistical reduction in probability of failure through investment. It could be considered a form of insurance since it’s a risk shift through payment.

Redundancy is not free, and may often go unused. Sometimes we misjudge the risk and bad things happen.

Bruce Schneier is one of my favorite authorities on system security and once again provides great insight:

From www.theatlantic.com:

It’d be easy to feel powerless and demand that our elected leaders do something — anything — to keep us safe.

It’d be easy, but it’d be wrong. We need to be angry and empathize with the victims without being scared. Our fears would play right into the perpetrators’ hands — and magnify the power of their victory for whichever goals whatever group behind this, still to be uncovered, has. We don’t have to be scared, and we’re not powerless. We actually have all the power here, and there’s one thing we can do to render terrorism ineffective: Refuse to be terrorized.

…

Empathize, but refuse to be terrorized. Instead, be indomitable — and support leaders who are as well. That’s how to defeat terrorists.

I disagree with Bruce on being scared, in my opinion feeling scared is valid, especially immediately after something like the Boston Marathon Bombing. What I believe Bruce is getting at is our long-term stance, and I agree that in the long-term we must choose not to be scared. We need to understand the bigger picture and choose to not be terrorized. Far to many of those whom we have elected (and continue to elect) are scared, even if they are only are only scared of losing their next election.

We must make better choices. We must choose to be indomitable. We must choose to support leaders who are not afraid. We must choose to make appropriate choices in the redundancy of our systems. We must not let the terrorist win.