We Can Spy and So We Will

The picture that is emerging of the National Security Agency's warrantless spying is complex, and poses a long term threat to the Constitution and to our privacy in general. Lichtblau and Risen of the NY Times state that the spying is of much broader scope that previously thought. That spying apparently involved a new technology (or technologies) in the NSA's toolbox, and collusion with U.S. telecommunication companies. It entails capturing the electronic data that passes through the switches of the major hubs in the United States. Further, the administration has encouraged these companies to pursue have international traffic use the hubs as well.

Joshua Marshall , in his Talking Points Memo of 12/20/05, thinks that the reason Bush didn't go through the courts for the NSA spying was because the technology exceeds the scope of any warrant. It is quite simply spying and data mining on a massive scale.Kevin Drum of Political Animal also leans in this direction, as does DefenseTech.

I suspect that this is an accurate appraisal of the situation as it ties into what came to light with the uncovering of the Total Awareness Information System (TIAS):

""Total Information Awareness System" operated under DARPA (Defense Advanced Research Projects Agency) and run by none other than John Poindexter of Iran-Contra infamy. TIA is a comprehensive "data-mining" system that collects all data available on an individual from all sources (commercial, public, private and government sources). For a look at the project itself, go to http://www.darpa.mil/iao/TIASystems.htm . Conservative editorialist William Safire is certainly up in arms, and his short article "You Are a Suspect" (article) says a lot about how invasive this system is." (Uncommon Thought Journal 1/02/2003)

So it seems likely that the data collection system used by TIA (or a similar one) is in the hands of the NSA (and the Defense Department, and Homeland Security, and ???). As, most likely is the data mining software to sift it. A court warrant would never be issued (under current law) for the capturing the communications of everyone. Legal use would take a legislative change. Since that is the case, the permission to play with the new toy and spy on the population, had to come from an internal source - the President. We have actually seen the implementation of at least parts of this system with CAPPS II (Computer Assisted Passenger Prescreening System) in use by the Transportation Safety Authority (TSA).A similar system is also in use by the Department of Housing and Urban Development (HUD) in their Homeless Management Information Strategies (HMIS) program.

The department of Homeland Security has its very own data mining program called "MATRIX" (and here). And apparently, it is also in use by the FBI as they arrested Jerry Texiero, for refusing to deploy to VIETNAM by matching data from military files with Florida arrest files. (Jack's Straight-Speak).

So we have a situation where Bush authorized the massive surveillance on untold number of people (all communications going through major communications switching systems), and he argues that it was legal under his "war powers," and that the FISA court would be too slow. Administration flunkies support that the surveillance is "legal," but this may all be a disinformation campaign - a campaign that Colin Powell is stepping forward to enhance. Meanwhile, Congress wants to expand review of domestic spying. Now, the word is out that Bush has been pressuring the press to keep stories quiet - including the most recent NSA debacle.

There obviously needs to be at least two foci in "oversight" of surveillance. One is the Constitutional protection from abusive intrusion by the government, and the other is the development and deployment of technology. It would seem that neither is happening. If the focus is only on the Constitutional issues, then the technology will continue to be deployed and used covertly (as Bush has done). The Congress revoked funding of TIA in 2003 (thanks to action by Ron Wyden (OR) and Charles Grassley (Iowa)). However, that obviously did not take the program out of the loop, and it IS being funded from somewhere - line item budgets in who knows how many departments of government. The fact that government is working with private industry with this technology also makes it available to private industry. It is one kind of threat to have such tools being used by government; it is a different type of threat to have it used by corporations; and the merging of those two means truly "total surveillance" of our daily lives.

Is it legal for the government - any branch of the government - to be using mass surveillance techniques? I think not.