Comment by willstrafach | Hacker News Reader

Comment by willstrafach | Hacker News Reader

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I think this is a misconception, but I totally do understand where it comes from. The OGC and IC IG genuinely do care a lot about these things but due to the classified nature of the NSA's work any disputes and arguments about all the nuances are occurring behind closed doors.

The specific big case which the public knows about would be the domestic telephony metadata collection. Nobody knows about the discussions related to this or any pushback, or how exactly this was deemed to be a legal practice, and so on. This looks very bad as it causes the assumption to be that there is no proper oversight rather than seeing this as a bad interpretation.

Instead of the learned helplessness and assumptions about NSA, it would probably be far better to have an aggressive push for declassified briefings regarding these kinds of decisions. After the Snowden leaks I recall ODNI declassified and published a good amount of documentation in order to demonstrate the IC"s side of the matter, so it is known that declassification reviews for very sensitive subjects can occur when they put ample resources into it. The IC is very sensitive regarding sources and methods, so that's why most declassified information usually comes from FOIAs and specific "IC On The Record" releases. If they would declassify and publicize information regarding these decisions, there can at least be more of a dialogue on the topic using concrete facts versus assumptions.

It takes a lot of chutzpah to make that kind of defense of the IC in 2017. It is also incredibly insulting to imply that nobody was aware of or upset about any of this before Snowden. What's clear to see is that when these concerns were being hashed out, the Tom Drakes and Bill Binneys lost. What won was so bad that we haven't even discovered the bounds of their malfeasance. The mistrust that the IC has rightly earned won't go away with such a trite dismissal. There is no proper oversight, not for any reasonable definition of the word. We wouldn't be here today if there had been.

> There is no proper oversight, not for any reasonable definition of the word.

Could you elaborate on what practices you precisely take issue with?

If it is regarding domestic telephony metadata collection, I am in agreement and I am glad that the USA Freedom Act restricted that. Otherwise, I don't really know how to answer you as you haven't stated any specific problem that you have.

Additionally, I'm not so sure my reply is that great of a defense, I am only stating facts because I do not believe that spreading misconceptions is very helpful to discussion on this kind of topic.

> Additionally, I'm not so sure my reply is that great of a defense, I am only stating facts because I do not believe that spreading misconceptions is very helpful to discussion on this kind of topic.

This is an interesting point. Over the past few years I've come to think that the most responsible perspective to adopt as a citizen is that officials and government are all, to some extent, bad actors who deserve a good measure of scrutiny and accountability.

The biggest breakdown in the democratic process has been a lack of appreciation on the part of the public for all that we consent to by not actively dissenting and demanding answers and accountability.

Frankly, the response by officials to the Snowden revelations was deeply embarrassing to our nation.

> The biggest breakdown in the democratic process has been a lack of appreciation on the part of the public for all that we consent to by not actively dissenting and demanding answers and accountability.

I agree. I don't intend to defend anything problematic. I just worry that it will be hard to demand actual changes if people are concerned about vague issues driven by a misunderstanding of how things work, versus actually being able to call up their representatives with specific changes and demands in mind.

> Frankly, the response by officials to the Snowden revelations was deeply embarrassing to our nation.

I think this was due to the amount of material he leaked. If it was only the metadata-related material or other material related to problematic practices, I would think there would be far more leniency. But because he had taken and leaked everything he could get his hands on, much of it unrelated to anything domestic, the disclosures were viewed very differently. I personally think it makes no sense to charge him with relation to the leaks regarding domestic metadata collection since it was already admitted that this was overreach, but it is hard to figure out why he would blindly copy and leak other sensitive unrelated material (Easy example: I do not understand how he justifies scraping the content of certain internal wiki pages and giving it to The Intercept, there are no injustices described there, just legitimate sensitive intelligence information).

> I would think there would be far more leniency.

I'm less concerned with Snowden's treatment than with the way that our leaders dealt with the revelation that crimes had been committed in the excessive collection of data.

In my opinion, at least a few senior intelligence officials should have faced prison time, several more should have stepped down, and we should have seen full details disclosed about the problematic programs and seen the technology infrastructure get dismantled.

But we saw nothing like this. President Obama pretended nothing had happened and things just continued on pretty much the way they had been.

The key point is that the surveillance programs Snowden revealed are illegal, criminal programs and there is zero accountability for those whose misdeeds and lies led to the programs.

While I have no doubt that the vast majority of intelligence agency employees are honest, law-abiding people, I am not comfortable with a massive surveillance system being built behind closed doors with no democratic oversight. The stakes are just too high.

I have a number of friends who work in government and I wonder whether they feel comfortable expressing their honest opinions about the programs since for all we know there is a sentiment analysis being done on the emails, tweets, texts, and phone conversations of all government employees with security clearance.

From the standpoint of preventing crimes by leveraging surveillance and data mining, of course there would be a sentiment analysis system, and the threat level posed by dissenting sentiment would be easy to monitor so that measures could be taken to prevent undesirable occurrences from happening.

Can a democracy exist when there is a massive surveillance system that everyone realizes is lurking behind every web cam and ISP? I'm not sure it can.

We've seen a handful of generals and public officials get destroyed by "leaks" of data that were quite likely obtained via the surveillance infrastructure. This should probably terrify us, but there is very little scrutiny of the methods used, including parallel attribution, and most government claims are taken at face value.

There was only one illegal program in the leaks — the phone metadata collection program that the GP mentioned. At the time it was leaked, its legality was unknown, but the leaks contained arguments from the government's attorneys explaining why it was probably legal. Their arguments had merit and were supported by the District Court of Judge William Pauley, who agreed that Smith v. Maryland's ruling was precedent. Only after appeal was the program ruled illegal, but by that time, the government had already stated the program would be replaced.

> the government had already stated the program would be replaced.

Has the program been replaced? How do comments from high level officials denying that US citizens were being surveilled en mass fit into the picture?

What justification exists for such a program to be created without any public debate? Why should we believe that clearly illegal programs don't also exist?

Considering that there is outrage about Trump commenting that he wishes to re-institute a "Muslim watch list", how is a metadata program that is essentially a meta-watchlist about all affiliations, creeds, etc., not expected to be rejected by the public?

> Has the program been replaced?

Yes. http://www.npr.org/sections/thetwo-way/2015/11/29/457779757/...

> How do comments from high level officials denying that US citizens were being surveilled en mass fit into the picture?

There was a comment, singular, from a high-level official, singular, denying collection of data on US citizens en masse. There was never surveillance en masse, so any denying that would be completely kosher.

> What justification exists for such a program to be created without any public debate?

Most government programs are created without a public debate, just as most private sector advertising programs are created without a public debate. As long as in-house counsel says it is probably fine, the programs go ahead.

> Why should we believe that clearly illegal programs don't also exist?

We have no way to know for sure, but since no clearly illegal programs existed in the indiscriminate dump provided by Snowden, and since the one program that was questionably legal had plenty of legal documentation in the dumps, we can conclude that it is unlikely that any clearly illegal program exists.

> Considering that there is outrage about Trump commenting that he wishes to re-institute a "Muslim watch list", how is a metadata program that is essentially a meta-watchlist about all affiliations, creeds, etc., not expected to be rejected by the public?

The difference is in how the data is used. One is used to harass Muslims and their acquaintances. The other is used solely to find affiliates of a known threat to national security by anonymized ID, which then requires a court order to be deanonymized.

> As long as in-house counsel says it is probably fine, the programs go ahead.

Yes, I know that all agencies have a John Yoo who is ready to write a learned legal argument for why their actions are within the law. This means nothing.

> The difference is in how the data is used. One is used to harass Muslims and their acquaintances. The other is used solely to find affiliates of a known threat to national security

Not true. The muslim watch list was created after 9/11 and was not shut down until late in Barack Obama's first term. It was only shut down because the metadata program came online and offered a more comprehensive version.

Both programs have the same goal, which is to find threats to national security. Both were created with good intentions in mind. The problem with both, in my opinion, is the potential for abuse.

> Yes, I know that all agencies have a John Yoo who is ready to write a learned legal argument for why their actions are within the law. This means nothing.

As I explained, this happens everywhere, not just in government agencies. That is why no reasonable person would have expected a public discussion prior to implementation.

> Not true. The muslim watch list was created after 9/11 and was not shut down until late in Barack Obama's first term.

We were discussing the Muslim registry that Trump wanted to implement, which goes far beyond NSEERS. He has at times ramblingly suggested that he wants all Muslims to be registered, not just some foreigners visiting the US as in NSEERS.

> We were discussing the Muslim registry that Trump wanted to implement, which goes far beyond NSEERS.

Right. Trump stopped calling for this after he was briefed on the metadata program and told "hey we have the best registry you could ever want, no need to call for one, it's already built and at your disposal".

Trump's decision to call for a Muslim registry was born out of the political appeal of saying something that is both commonplace and controversial. Obama wanted a Muslim registry and utilized it for several years as well. Yet when a guy like Trump talks about it he does it in a way that angers people and generates newspaper headlines.

> s I explained, this happens everywhere,

Right, it's a risk mitigation strategy not a law-compliance strategy.

> Right. Trump stopped calling for this after he was briefed on the metadata program and told "hey we have the best registry you could ever want, no need to call for one, it's already built and at your disposal".

Did you forget that this metadata collection ended? Did you forget that when it was collected, the only way to query it was to find anonymized IDs of contacts to issue court orders to deanonymize? I explained both of these earlier in this very conversation. Or do you think that Trump doesn't understand these nuances and thinks he has the the ability to spy on anybody?

> Obama wanted a Muslim registry and utilized it for several years as well.

Did you forget that NSEERS isn't a Muslim registry but a registry of visiting foreigners from specific dominantly Muslim countries, as I just explained in my previous post, which is different from an actual Muslim registry that Trump has suggested he supports?

> Right, it's a risk mitigation strategy not a law-compliance strategy.

Whatever you call it, this happens everywhere, so it's amazing to me that you would think public debate would be necessary before implementing those programs.

> Did you forget that this metadata collection ended?

I do not believe this to be the case. We have been reassured multiple times that our agencies are not eavesdropping, etc., yet revelations have continued to emerge that these reassurances have been lies.

> Whatever you call it, this happens everywhere,

The fourth amendment is fairly unique in the world. It (and the first and second amendments) are even unique in the western tradition rooted in English common law. So yes, I know it happens almost everywhere. That does not mean it should happen here.

I'd also comment that there must be a bizarre, un-American cynicism among the people who write things like the "Patriot Act" and the sorts of legal briefs that allow agencies to burn the bill of rights at will. Who are the monsters who want to destroy the few things that could be considered unique cultural and humanitarian achievements of our nation? And why do you defend them!

> We have been reassured multiple times that our agencies are not eavesdropping, etc.

Did you forget that we have had no evidence that our agencies are eavesdropping despite having access to an indiscriminate drop of data from Snowden?

> The fourth amendment is fairly unique in the world.

As is every single other American law. You have given no justification for why in-house counsel should treat the Fourth Amendment differently from any other Bill of Rights issue. If in-house counsel believes a program's legality can be justified, the program will proceed -- this happens regardless if counsel is retained by a government agency or a private entity.

> And why do you defend them!

I am not defending the authors of the Patriot Act. I am correcting your obscene misconceptions of what programs were actually in place. The programs you thought were in place would be clearly unconstitutional like the sections of the Patriot Act that were struck down in 2007, but the programs that were actually running were not even close to what you have somehow come to imagine.

USA Freedom act isn't reform, it's a post getting caught minor change of and extension of the Patriot act. Reporting is still voluntary for all practical purposes. Oversight of FISC matters is still the domain of the same FISC that did close to nothing to stop the rampant abuse, except maybe give cover.

My biggest issue is the mixing of the NSA's surveillance power with domestic law enforcement.

As for your facts you've made some very loquatious attempts. I'm skeptical as to the actual number of facts contained therein.

I don't know if I would call it rampant abuse. It was one program which I also disagree with, and the USA Freedom Act rectified this (Or rather, it fixed the concerns that I had about it, you may disagree).

> My biggest issue is the mixing of the NSA's surveillance power with domestic law enforcement.

I fully agree. Serious changes are needed here in my opinion and I hope the pressure due to renewal this year will allow for some reform.

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