American Spies: how we got to age of mass suurveillance without even trying

["Dave Farber" <dave () farber net>]

---------- Forwarded message ---------
From: Dewayne Hendricks <dewayne () warpspeed com>
Date: Sun, Feb 12, 2017 at 3:57 PM
Subject: [Dewayne-Net] American Spies: how we got to age of mass
surveillance without even trying
To: Multiple recipients of Dewayne-Net <dewayne-net () warpspeed com>


American Spies: how we got to age of mass surveillance without even trying
Review: law prof explains how the road to bad law is paved with good
intentions.
By Cyrus Farivar
Feb 12 2017
<
https://arstechnica.com/tech-policy/2017/02/american-spies-how-we-got-to-age-of-mass-surveillance-without-even-trying/
>

While American Spies was written prior to Donald Trump winning the 2016
presidential election, it has become vital and relevant under the new
Republican administration.
Jennifer Stisa Granick is one of the premiere legal minds currently trying
to grok the intersection between surveillance, privacy, and public policy.
She serves as the Director of Civil Liberties at the Stanford Center for
Internet and Society. Before that, she worked at the Electronic Frontier
Foundation.

In her book, Granick presents an expansive overview of the
national-security legal landscape. However, despite being geared largely
toward attorneys and academics, American Spies can be easily understood by
anyone with even a passing familiarity with touchstone concepts that have
graced the pages of Ars Technica in recent years, including Edward Snowden,
Section 702, and Executive Order 12333.

The fiery counsel wastes no time in laying out her argument:

Modern surveillance is regulated by a confusing patchwork of laws that
nevertheless fails to provide meaningful limits on government power, and
which therefore invites abuse. After September 11th, laws that should have
protected people’s privacy and stopped surveillance abuses were weakened
via the USA PATRIOT Act. When technology and economics gave spies vastly
more power, rather than have law step up to the challenge of constraining
that power, Congress and the courts did nothing, or the laws were softened
even further. American spies have flooded into the power vacuum left by
powerful technology and weak legal protections.

In short, American law as it stands is largely insufficient to deal with
the crushing weight and power of American spies.

Jeu de mots

While Chapter 1 is largely a summary of Snowden-era programs and
revelations, Chapter 2 is the part of Granick’s book that made me sit up
and take notice.

She argues that a huge gulf separates how words are used by the
intelligence community and the general public. For example: “surveillance.”
Granick uses it in the way that Ars (and probably most people) use it:
“Surveillance means government collection of private and personal
information: address books, buddy lists, photos, phone numbers, web
history, geolocation data, and more.”

But within government circles, surveillance means something very specific:
it’s shorthand for “electronic surveillance” (ELSUR) as governed by the
Foreign Intelligence Surveillance Act (FISA).

She writes:

By using “surveillance” to mean only ELSUR governed by FISA, officials can
say that they do not conduct “surveillance” even when they are collecting
personal data like phone numbers, Internet transactional records, face
prints, or geolocation data. The intelligence community might call its
acquisition of this kind of information “collection,” which sounds milder
than “surveillance”... The word “bulk” is another opportunity for mischief.
People use the word “bulk” as a synonym for massive, vast, or large-scale
collection. But the intelligence agencies have a special definition of the
word “bulk.” They only use “bulk” to mean acquisition that takes place
without using a selection term or “discriminator.”

In other words, grabbing everything is bulk. But if the government uses
search terms, keywords, or selection terms, it’s not bulk. So, if, when
wiretapping a particular fiber optic cable, the NSA selects or “tasks” all
communications with the word “Syria” or “China” in them, the NSA lawyers
might not call that “bulk,” even though hundreds of millions of innocent
people’s irrelevant messages are going to be collected and analyzed.
Similarly, the government won’t say that its collection is indiscriminate
if it uses any kind of selection term.

[snip]

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