Sunday, December 29, 2013

Surveillance & the American Mind: Deconstructing Metadata


Metadata is not what it seems and is not what is at stake.  Metadata is the timid public face of domestic surveillance, which is actually far more powerful and invasive.  By the term metadata, I mean section 215 metadata phone surveillance.

Total Electronic Surveillance

[The NSA is] collecting everything, contents word for word, everything of every domestic communication in this country.
          Russ Tice, former NSA analyst, August

[T]hat's why they had to build Bluffdale, that facility in Utah with that massive amount of storage that could store all these recordings and all the data being passed along the fiberoptic networks of the world.  ...[Y]ou could store 100 years of the world's communications here.  That's for content storage.  That's not for metadata.

          William Binney, former NSA mathematician, August

In a sense, we have two conversations taking place - a timid exchange and a sober one.  In the timid exchange, we have members of Congress, US district court judges, some lawyers, a large portion of the press, and executive branch officials discussing metadata.  In the sober exchange, we have NSA whistleblowers, other lawyers, a smaller portion of the press, and a good part of the blogosphere discussing total electronic surveillance.*/**

Indeed, the three biggest NSA stories of December - the Presidential Review Group report, US district court judge Richard Leon's ruling on Klayman v. Obama I (and not II), and US district court judge William Pauley's ruling on ACLU v. Clapper - are in the timid category and focus on metadata.  (Though Klayman v. Obama II was not a metadata case, Leon did not rule favorably on it.)

Let there be no illusions: as multiple former intelligence and law enforcement officials illustrate above (and below***), we live in a total electronic surveillance society.  Metadata is, at best, a red herring and, at worst, an uncoordinated or even coordinated limited hangout, which distracts an already regimented American people from seeing the social control apparatus that has been erected around us since 9/11.  

To the extent that the courts focus on metadata cases and Congress focuses on metadata questions, an entire subset of NSA programs, actions, and technological practices remain obfuscated in the public debate - despite appearing the most illegal, unconstitutional, and illegitimate.  We cannot overemphasize that the disclosures are not simply about metadata but rather total electronic surveillance - not to mention other subtle issues including decryption programs such as Bullrun.  


Proffering Absurdities

First - as I said, I have great respect for Senator Wyden.  I thought, though in retrospect, I was asked a 'When are you going to start, stop beating your wife'-kind of question, which is meaning not answerable necessarily by a simple yes or no.  So I responded in what I thought was the most truthful, or least untruthful manner by saying no.           

          James Clapper, DNIJune (11:15)****

'Least untruthful' is not 'too cute by half'; it's Rumsfeldian bullshit.  As many people know, NSA Director Alexander said in June the NSA had thwarted 54 plots under Section 215 and Section 702.  Then, in October, he said one or two plots involved metadata phone record collecting under Section 215.  Meanwhile in July, NSA Deputy Director John Inglis said that metadata phone record collecting helped catch Basaaly Moalin and three others successfully sending $8,500 to al-Shabaab, the Somali-based terrorist group that claimed responsibility for the Westgate shopping mall attack in Kenya.  

Moalin is a legitimate SIGINT success.  But there's a problem with these exchanges.

Alexander has four master's degrees - two in hard science fields; he's a four star general and a West Point graduate.  Inglis has two master's in hard science fields; he was a Brigadier general and US Air Force Academy graduate.  Together they manage an organization with a $10.8B annual budget and that employs 40K+ people.  Alexander and Inglis - who have for decades work in the fields of state secrecy - would have us believe that the crowning achievement of metadata phone record collecting under Section 215 is that they caught a cab driver in San Diego successfully sending $9K to Somalia.*****

Presenting Moalin as sufficient or legitimate evidence for the 'phone dragnet' (i.e. metadata phone record collecting under Section 215) is only possible in a political culture where lies, obstruction, and propaganda has become commonplace and truth has lost a significant degree of real meaning.  NSA officials are proffering the absurd.  Whereas these leaders have lied about specific issues, the greatest lie occurring here is the one of omission.  We are not only getting ordinary lies discussed in part 5, Deception as Policy, but a more sophisticated one.   The picture NSA officials have allowed to unfold is a cartoonish absurdity.  Although such is nearly impossible to verify, Moalin and metadata are likely uncoordinated limited hangouts.  

The question is: what are they hiding?  Parallel construction (a.k.a parallel investigation) is a candidate answer.


Parallel Construction

Ultimately it's the metadata that they're going to use against people when and if they use everything that they have against them in court.  So, now here's the big thing.  NSA collects everything.  NSA collects word for word content of every phone call communication, of every email, of every Skype message system, of everything, of all the Facebook and all the google and that order information too.  They collect everything.

          Russ Tice, December (2:45) 

The Intelligence Community (IC) has all the electronic communications in the domestic arena (or a meaningful portion it and the intention to getting all of it); but IC officials are not going to state in blunt terms that the surveillance system is approaching or has already become complete and omnipresent.  But they are pushing for metadata as the legal tool and public face of their methodologies.  They use (or may eventually use) the complete data set to examine a target and the metadata set to charge the target in court.  That is, as far as I can tell, what metadata is really about.  Ironically, Inglis in a sense reveals their hand when he said "That's not how these programs work". 

Reuters openly reports this very argument regarding parallel construction and the DEA.  The DEA also receives NSA tips, which enable further parallel construction.  Indeed, NSA, CIA, and the IRS all allegedly share intelligence, which also illustrates the power and use of parallel construction.  Total electronic surveillance is powerful; and intelligence and law enforcement officials unsurprisingly want it.  But American need to provide their consent.  That has not happened to date.

(In a larger sense, it's worth noting the surveillance state is likely as much about offensive, political objectives as defensive, strategic objectives.  For instance, emptywheel has noted that the NSA conducts infiltration - in other words creating and accessing strategic informants and other assets.  I'll further argue in A Wisdom-less Society that surveillance is very much if not completely about social control as Snowden argued.)  


* For a comprehensive, evidence based portrayal of the NSA's technological capacity see this ProPublica piece.

** Admittedly, I am simplifying matters; Jewel v. NSA and is not a metadata case; and many important cases remain open.  Also, as far as I can tell, the Intelligence Oversight and Surveillance Reform Act - the reform offered by Senators Wyden, Udall, Blumenthal, and Paul - is not (at face value) metadata legislation.  Nor is the USA Freedom Act - the reform offered by Senator Leahy and Representative Sensenbrenner.

*** Former FBI Director Robert Mueller in 2011: "We put into place technological improvements relating to the capabilities of a database to pull together past emails and future ones as they come in so it does not require an individualized search."  Former NSA senior executive and whistleblower Thomas Drake in 2012: "[T]he NSA has chosen to seize and save all personal electronic communications."  Former FBI agent Tim Clemente in May: "There's a way to look at digital communications in the past.  And I can't go into to detail of how that's done or what's done.  I can tell you that no digital communication is secure."  Snowden in June: "[T]he reality is this: if an NSA, FBI, CIA, DIA, etc analyst has access to query raw SIGINT databases, they can enter and get results for anything they want.  Phone number, email, user id, cell phone handset id (IMEI), and so on - it's all the same.  The restrictions against this are policy based, not technically based, and can change at any time.  Additionally, audits are cursory, incomplete, and easily fooled by fake justifications."

**** What exactly is a 'When are you going to start, stop beating your wife'-kind of question?  As it turns out Clapper is clearly alluding to an exchange between former Director of Central Intelligence Richard Helms, American journalist Daniel Schorr, and another reporter.

As shared (on page 57) in Challenging the Secret Government by Kathryn Olmstead, Helms says to Schorr: "I must say, Mr. Schorr, I didn't like what you had to say on some of your broadcasts on this subject.  I don't think it was fair, and I don't think it was right.  As far as I know, the CIA was never responsible for assassinating any foreign leaders."  

Another reporter asks if the CIA had discussed assassinations.  Helms: "I don't know whether I've stopped beating my wife, whether you've stopped beating your wife.  In government, there are discussion of practically everything under the sun."  "Of assassinations?"  The report quipped.  Helms: "Of everything!"

I'm really not sure what to make of all this beating-of-wives talk.  But it strikes me (no pun intended) as meaningful.  Without getting to far afoot and at the risk of myself being cute, one gets the impression that Clapper is subconsciously or even consciously admitting that he is in an abusive relationship with the American people and maybe even doesn't really give a shit.  If it conscious, you have to respect the boldness of it all.  Some have suggested that, in Clapper's decision to say he has "great respect for Senator Wyden", he was in fact saying in code that he has no respect for him.  More on that in Power and Illusions.

As it turns out and as many people know, the CIA had indeed helped to assassinate Patrice Lumumba, the first democratically elected Prime Minister of the Republic of Congo, and others.  The Church Committee brought this subject to light precisely because of the work of reporters like Daniel Schorr.

***** Just to complete this discussion: according to ProPublica, three other cases exist in relation to Section 215 and Section 702 - one where no one was charged with crimes and two others where additional law enforcement methods played the key role; emptywheel takes this view as well - see bullet two.  emptywheel also confirms that Moalin is the primary achievement under metadata phone record collecting under Section 215.  It is worth noting that the NSA very well may have more cases from the 54 of value to present to the public - related to Section 702. 

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