Outside the Beltway

Farber on FISA: It’s Not Wiretapping

James Joyner · Tuesday, January 3, 2006 · 5 comments

In an effort to keep Gary Farber from flinging himself out the window, I am linking to his post linking to his posts on the NSA/FISA story.

In answer to the endless mantra of “but why couldn’t they just get FISA warrants?”: bottom line: if you’re doing a multiplexdata-mining pattern analysis on tens of thousands or more people, shifting by possibly tens of thousands of people per day, or more, you can’t get warrants. It’s not humanly possible.

Which, as I keep explaining, only makes the threat exponentially larger than most non-tech oriented left/lib/progressives seem to understand, with this antediluvian focus on “wiretaps” and “why can’t you get a FISA warrant?” That’s a question that was entirely sensible when we all asked it last month. It’s long been answered and answered and answered and answered.

It’s far greater reason for Congress to get the truth out, and possibly impeach, then simple wire-tapping. It’s as if people kept decrying the threat of TNT when we’re talking about the fact that the fusion bomb has been invented and put to use.

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Surely I shouldn’t have to over-emphasis just how vastly more potentially totalitarian even this is, let alone the Total Information data-mining it’s a part of, then mere wire-tapping. Even if they had been slapping on 5,000, or hell, 50,000, new individual taps a day (not that that would be humanly possible, of course), it would be relatively trivial compared to just how massively, wholly, totalitarian these two vastly more important issues are.

Trying to get people to understand this is not an attempt to minimize the issue. It’s to point out how completely anyone instead talking just about “wiretaps” is fricking minimizing the issues at stake here.

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Of course, it’s impossible for us civilians to as yet have more than clues and bits and pieces as to what precisely is going on, which is why courageous and exhaustive Congressional hearings are a must, no matter that they, yes, must balance the genuine need for security with a necessary airing of sufficient information for a democratic society to decide, as always, where the current line balancing security and liberty must be drawn. This has been done in the past, can be done now, and must always be done in the future, if our Republic is to stand.

I don’t understand the nature of the program well enough to evaluate the threat to our civil liberties. My sense remains that the vastness of the information out there and the fact that it is mostly mundane and tedious makes it unlikely that anyone is paying attention to conversations that aren’t triggered by fairly well chosen keywords. The combination of the incredibly classified nature of the program and my limited understanding of the state of the art of signals intelligence is such that I’m far from confident in that.

Farber is almost certainly right, though, about two things. First, the technical nature of the program likely renders getting FISA warrants impossible, both because the probable cause threshhold wouldn’t be met and because of the sheer volume of information involved. (I, too, find the repeated references to “wiretapping” annoying.) Second, the potential for abuse is such that congressional oversight–obviously, with strict rules and limitations appropriate for a highly classified operation–is necessary.

Update: Shane Harris and Tim Naftali have a similar analysis in Slate today subtitled, “Why the NSA’s snooping is unprecedented in scale and scope.”

The agency used to search the transmissions it monitors for key words, such as names and phone numbers, which are supplied by other intelligence agencies that want to track certain individuals. But now the NSA appears to be vacuuming up all data, generally without a particular phone line, name, or e-mail address as a target. Reportedly, the agency is analyzing the length of a call, the time it was placed, and the origin and destination of electronic transmissions. Those details would be crucial in mining the data for patterns—according to the officials the Times cited, the goal of the NSA’s eavesdropping system.

Pattern-based searches are most useful when run against huge sets of data. Many calls and messages must be analyzed to determine which ones are benign and which deserve more attention. With large data sets, pattern-based searching can create more nuanced pictures of the connections among people, places, and messages. Deputy Director of National Intelligence Michael Hayden, who until this year was the NSA director, recently hinted that the NSA’s eavesdropping program is not just looking for transmissions from specific individuals. It has a “subtly softer trigger” that initiates monitoring without exactly knowing in advance what specific transmissions to look for. Presumably, this trigger is a suspicious pattern. But officials have not actually described any triggers, raising the question of whether the NSA has been authorized to go on such fishing expeditions.

While much more speculative than the authors admit, their explanation of the program squares with my sense of what is going on–although the patterns vice keywords issue is new. Their guesses are well within the scope of the NSA’s mission.

”The whole idea of the NSA is intercepting huge streams of communications, taking in 2 million pieces of communications an hour,” said James Bamford, the author of two books on the NSA, who was the first to reveal the inner workings of the secret agency. ”They have a capacity to listen to every overseas phone call,” said Tom Blanton, director of the National Security Archive at George Washington University, which has obtained documents about the NSA using Freedom of Information Act requests.

The NSA’s system of monitoring e-mails and phone calls to check for search terms has been used for decades overseas, where the Constitution’s prohibition on unreasonable searches does not apply, declassified records have shown. But since Bush’s order in 2001, Bamford and other specialists said, the same process has probably been used to sort through international messages to and from the United States, though humans have never seen the vast majority of the data.

”The collection of this data by automated means creates new privacy risks,” said Marc Rotenberg, executive director of the Electronic Privacy Information Center, a watchdog group that has studied computer-filtered surveillance technology through Freedom of Information Act lawsuits. Among the risks, he said, is that the spy agency’s computers will collect personal information that has no bearing on national security, and that intelligence agents programming those computers will be tempted to abuse their power to eavesdrop for personal or political gain.

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[Former NSA director General Michael] Hayden, now the deputy director of national intelligence, told reporters this week that under Bush’s order, a ”shift supervisor” instead of a judge signs off on deciding whether or not to search for an American’s messages. The general conceded that without the burden of obtaining warrants, the NSA has used ”a quicker trigger” and ”a subtly softer trigger” when deciding to track someone. Bamford said that Hayden’s ”subtly softer trigger” probably means that the NSA is monitoring a wider circle of contacts around suspects than what a judge would approve.

Or, as Farber notes, could approve. It should be noted, though, that a judge would be looking at approval within the context of admissibility in a court of law. That’s presumably not the NSA’s interest.