Why aren’t there any technologists on the NSA review panel?
washingtonpost.com
washingtonpost.com
The professors aren't ideologically diverse, but they're hardly intelligence community insiders like the article is trying to make them out to be. Swire was Chief Counselor for Privacy in the OMB under Clinton. Stone writes a lot on subjects like preserving free speech rights during wartime. None of these guys are anarcho-libertarians, but they're not John Woo "security first" guys either. They pretty much represent the views of the "mainstream left."
Hypothesis: what people want is not someone who knows "how to run a packet sniffer." There is nothing complicated about the underlying technology that can't be explained adequately to a bunch of intelligent people. What people are really mad about is the lack of any representation of the political views of technologists: people who put a very high ideological priority on free information and protecting communications online. Because that is the thing you can't explain in a whitepaper.
Assuming the underlying technology and it's implications are explained adequately at all. We already know how they try to explain metadata, so how are they going to explain the stuff we still don't know about?
Explained by...? I would have thought that having a technologist on the panel would at least serve the purpose of explaining technology issues to the rest of the panel's members.
Why aren’t there any technologists on the NSA review panel?
First, they wanted Clapper to do the independent review. [1] This is the man that openly lied to congress and remains scott-free to this day.
Next they picked Michael Morell. [2] This dude was the acting director for the CIA until March of this very year. Clearly he has the capacity to conduct an independent review of his NSA buddies.
Joining this luminary will be Cass Sunstein [3], author of such classics like "Democracy and the Problem of Free Speech", and the person who proposed the government should infiltrate what he deems "conspiracy theory groups":
However, our main policy idea is that government should engage in cognitive infiltration of the groups that produce conspiracy theories [4, page 14]
Supporting these brains is Richard Clarke, who built his personal career on pushing the "war on terror" after 9/11. He also recently added "cyberwar" to his extensive portfolio of things he has absolutely no clue of. His views on privacy protections and large scale surveillance are well known:
If given the proper authorization, the United States government could stop files in the process of being stolen from getting to the Chinese hackers. If government agencies were authorized to create a major program to grab stolen data leaving the country, they could drastically reduce today’s wholesale theft of American corporate secrets. [5]
(It doesn't take a genius to realize this is the proposal of a person that probably doesn't even have internet access.)
Of course, all of these people work in some capacity for the Obama administration. It didn't even occur to the government morons running this show that maybe, just maybe, they should not pick people with an obvious and direct conflict of interest. They don't even bother to give the impression of caring.
[1]: https://www.techdirt.com/articles/20130812/13512624147/presi...
[2]: http://abcnews.go.com/blogs/politics/2013/08/white-house-pic...
[3]: http://en.wikipedia.org/wiki/Cass_Sunstein
[4]: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1084585
[5]: http://www.nytimes.com/2012/04/03/opinion/how-china-steals-o...
This is exactly right. This is a case of the government reviewing itself by packing the review board with insiders and sympathizers. Nobody who disagrees with the NSA's behavior has been selected for this panel.
Blogger Emptywheel has been following this much more closely than the general media:
Advocate of Secret Infiltration, Cass Sunstein, on Obama’s “Committee To Make Us Trust the Dragnet” [1]
The No-Technologist Technology Review Panel [2]
3 Tech Issues the Non-Technologist NSA Technical Committee Needs to Address [3]
[1] http://www.emptywheel.net/2013/08/22/advocate-of-secret-infi...
[2] http://www.emptywheel.net/2013/08/27/the-no-technologist-tec...
[3] http://www.emptywheel.net/2013/08/28/3-tech-issues-the-non-t...
Richard Clarke built his post-government career (after being the most senior counterterrorism official in the Clinton administration) as a critic of the way the "war on terror" had been prosecuted, and has been working on "cyberwar" subjects for over a decade.
I don't like Clarke much and I don't agree with everything Cass Sunstein proposes but your dismissive tone harms your argument.
Obama himself graduated magna cum laude with a masters degree in law from Harvard and then lectured on constitutional law for 12 years at the University of Chicago Law School. Expertise in constitutional law doesn't necessarily translate to skepticism here. The constitution is not a moral authority on privacy.
Richard Clarke
He wrote an interesting op-ed before he was named to this committee. It appears to be critical of the NSA's operation, but a closer reading suggests his problem is about the degree, he's fine with massive record keeping, he just wants it in the hands of the telcos.
http://www.nydailynews.com/opinion/worry-nsa-article-1.13697...
I'm not sure where "moral authority on privacy" enters the picture. The question is how the program comports with the Constitution and the American system of governance.
The idea that Cass Sunstein is a "yes man" for Obama is laughable. If anything, it's the other way around.
You will also find in the work of most constitutional scholars something to upset any message board anarcho-libertarian, because very few of them believe in the black-letter absolutism that anarcho-libertarians choose to evaluate the Constitution in. You think there's nothing in Tribe's record to argue with? He's a gun control supporter, for one. You think pundits wouldn't be calling him an "Obama yes-man"?
But I'm still not convinced that the panel is anywhere near independent given the rest of the crew such as Morell and Richard Clarke.
(I appreciate how gracious your comment was. Thank you.)
The problem is that Sunstein has gone on record (and written a book) supporting governmental overreach. You're hiring yes-men to do your "independent review".
An issue at hand is whether the group will merely be researching means by which the ends can be maintained, that they are yes-men for the activities, the same way Obama appears to be. It's reasonable to question whether they have the same master, that they aren't truly independent.
No, wait, that's angels -- people can't really be trusted that way. If they could, we wouldn't need this panel in the first place.
He is a person who has expressed views supportive of an extremely active role of government in covertly surveilling and infiltrating with the intent of moderating domestic political groups whose views are unwelcome to the government.
This clearly makes him a extremely problematic pick for a review board whose role (as overtly stated by the President) is to instill confidence that the NSA is not taking an actions that are excessive, unconstitutional, and illegal under statute law in terms of covert domestic surveillance, no matter how "famous" he is.
It makes him problematic if you think that the panel has any purpose suitable to a public panel at all.
* If it is a PR effort, its problematic because Sunstein's known biases make it easy to discount his opinion when the underlying facts aren't reviewable.
* If it is a serious effort to get to the bottom of what is going on at the NSA, it is problematic because Sunstein's known biases make it unlikely that he will be interested in probing to deeply.
* If it is a private effort to reassure Obama about legality, that doesn't make sense for a public panel of this type at all, no matter what the composition is.
The reality, of course, is that hardly anyone knows who any of these people are.
Have you read much of Sunstein's stuff? What's the thing you found most problematic? Surely it isn't Nudge (a great book! but not particularly indicative of Sunstein's legal philosophy.)
Way to go! Replying to the grand parent's (revelation's) solid argument by using vague statements. Just what does the most famous living constitutional law scholar even mean? Besides being meaningless statement like the most beautiful woman in the world it is also almost irrelevant - almost nonsensical - to the current discussion. Just because a person has had a successful career - particularly in politics, bureaucracy and fields like that - doesn't mean the person doesn't have an agenda and vested interest. In fact some would argue it is quite the opposite as - unlike some tech/hard science luminaries, for example - their success is likely correlated with their other - rather nefarious - traits than pure merit alone.
Your next paragraph about Richard Clarke is in similar vein.
Read Feynman's account of being on the Challenger review panel. He was the token scientist among politicians and PR people, and they tried to steer him away from doing any actual investigations. They tried to agree, before doing any investigation into why the shuttle blew up, not to blame NASA and to indeed give it vote of confidence.
The goal is to deflect blame from the government while making the status quo look hunky dory. Any actual investigation is counterproductive and I guarantee it won't actually happen to the NSA. This is a PR campaign, period.
Because the last thing the NSA wants on a panel reviewing them is someone technically competent.
When the government is doing something bad, it's not relevant whether it came from technical problems rather than cultural.
All we need to know is that the government has been doing something bad. The evidence that this has occurred, for any reason, should be sufficient to shut it down.
Stating the obvious: This panel is not about solving the issue at hand.
Another example: Was anyone really satisfied with the "9/11 commission"?
Actually, that commission produced a number of recommendations (http://govinfo.library.unt.edu/911/report/index.htm) which were welcomed by many in Congress and some of which were actually implemented. They included such issues as requiring government security agencies to share data with each other and reorganizing the reporting structure to ensure that would happen.
The analogy fails in this case though, because the 9/11 commission was independent and had members from various backgrounds.
> review government surveillance policies
Because they're not needed to review policy. You honestly don't need to understand technology, and therefore don't need a technology expert, for most things that happen in the world.
Do you expect a technology expert on a medical review board? The doctor is after all going to be using technology ...
This review board is supposedly trying to establish how bad the NSA surveillance -- clearly a technologically-sophisticated system -- is. If you have people on there who don't even understand how the Internet works (i.e., most politicians), then how in the hell are they going to audit an Internet surveillance system?
But yeah, I agree with you in that it doesn't matter in the long run. This is a rubber-stamp review.
You need to understand technology in order to understand the implications of what applying particular policy may lead to, and thus whether the policy itself is sane. In the real world, there are major implications when technology fails to implement policy because it fundamentally cannot do so.
For example: in the UK, David Cameron's attitude towards Internet censorship seems to be "It doesn't work. You're smart; make it work." and completely ignores the fact that it is technically impossible to do what he would like. Yet he continues to demand it anyway.
Pretending you need experts in 'technology' to do anything that ever comes in the same room as a computer enforces this view, it doesn't change it.
Policy should be written in such a way that it is abstracted from the implementation detail. To the point, it shouldn't matter if I am talking on the phone, writing a letter or IM'ing someone over the internet, the NSA should have to hit the same requirements to look at it.
> completely ignores the fact that it is technically impossible to do what he would like. Yet he continues to demand it anyway
"Idiots doing idiot things because they're idiots." He has been told, many times, by 'technologists' that what he want's can't really be done. It doesn't seem to matter now, does it.
Turns out that the reason the money was stolen is because the vault has no door. Just because the bank has a "money in the vault can't be stolen" policy on paper doesn't cause that vision of how the world SHOULD be to become REALITY. In order to winnow out the truth in this situation the review panel would need to have someone who knows something about security and vault construction on it. Also who perhaps would be allowed to inspect said vault to verify it's intact.
This is 100% analogous to the NSA review panel as all the folks in government are crowing about how it's policy that you can't look at such-and-such without a reason, but in fact there's no technological enforcement of said policy. Analysts can look at whatever they want provided that they give (type into a text field) some kind of ostensible reason, but that reason is only for auditing purposes. A bad reason typed into a field doesn't prevent the search as there's no review of said reason prior to the search running.
It's a bank vault with a door where the "lock" is a "sign in, sign out" sheet taped to the wall near the handle. And no security guard ensuring that people do in fact sign in and sign out. And definitely not checking to see that the money everyone's leaving with is in fact for the regular operations of the bank and not for their own personal gain.
Just because it uses something does not mean a subject matter expert on that thing needs to be involved in every part of the policy surrounding it.
On top of that, this specific group is concerned with the legality of what the NSA is doing. This is the realm of lawyers and constitutional experts. The fact that they are using a computer instead of pads of paper doesn't change that.
Or did they need representatives from the paper mill before?
> in fact there's no technological enforcement of said policy
Oh, and policy writers are often not policy implementers and never are in government, a review board of the policy won't change that.
We've seen before that the NSA can't be trusted to tell the truth about their systems. That means that their experts, reporting on their systems, also can't be trusted.
Furthermore the legality does in fact hinge on the implementation. If the NSA records everything but encrypts it with something that they themselves can't crack and different judges are given the encryption keys for their respective regions of authority and better still there are multiple judges for each region and its randomly decided which judge gets the key on a given day, you might actually convince me that the NSA hasn't yet performed a search.
So let's suppose for a minute that the NSA would claim exactly that. And let's suppose that the panel decides that given the system described, it is in fact constitutional. We would still need an independent auditor to examine the systems in question and ascertain if in fact the NSA is telling the truth. Because what matters isn't the WRITTEN policy, it's the ENFORCED policy. If all we're doing is finding out the legality of the written policy, it's a total joke.