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Comment by chippy | Hacker News Reader

I have some sympathy for our fellow hackers who work as contractors or in big companies, many of them with security clearance. Database engineers, software developers, data experts - the five eyes intelligence agencies directly and indirectly fund many of you readers of HN.

They might be becoming increasingly disillusioned with their chosen life and/or unable to change course. Perhaps the money is too good, perhaps their contracts too restrictive. They might have inside knowledge and believe that the NSA is in the right, but they would not be able to voice that belief to us, their friends and colleagues. Unable or unwilling to change course if they believe their country is in the wrong and unable or unwilling to speak up in defence if they think it is in the right. I'd certainly like to talk (in private) to those I knew who at the start of the Snowden affair openly said that he was a traitor and hear what they now think.

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Why sympathize with them? They either decided in bad faith that working on an interesting problem was more important to them than acting ethically, or they are saying "I'm just doing my job" also in bad faith. These philosophical decisions are simply malicious relative to the rest of us.

There is also the possibility that they have been deluded by nationalism or propaganda in order to believe that a panopticon is acceptable in a democracy, but there isn't much we can do to help these people connect the dots between the panopticon they are helping to build and Orwellian thoughtcrime-- we simply don't have access to them that we could use to be persuasive, as you mentioned. I think this population of people is actually pretty large among the government contractors.

Finally, though you are correct that NSA employees would probably mention this, for the purposes of agencies operating in the public interest in a democracy, the concept of "insider knowledge" is not permissible. I say this not to suggest that we make all the operations of our clandestine groups transparent, but rather to suggest that the complete ignorance the American public has found itself to be in is a byproduct of intentional grooming along the lines of "national security secrets" which really are intentionally crafted backdoors to the process of informed democracy. The citizens not involved in agency day-to-day have a firm need to know the methods and rationales used, and they need to have direct and powerful oversight.

We don't have any of these things, currently.

Why sympathize with them? Because you would undoubtedly appreciate me second-guessing decisions you made in complex, nuanced situations to which I was not a party, just as much as they likely appreciate the way you've reduced their dilemma to a ridiculously over-simplified, cut-and-dry model of reality that is no more fair than it is accurate. That's why. Don't excoriate these people based on your assumptions.

Do we currently have the ideal balance between the need to protect our citizens and national interests, and the need to protect the rights of our citizens that our Constitution guarantees? Hell no, we obviously don't have it. Is that something most NSA employees have control over? No. You may be the one who is deluded if you think someone can just raise their hand at the NSA and say, what?, "I think we should re-think how we're doing business, because we might be infringing on the rights of everyday Americans." It's a bureaucracy. To address these issues, we need to be suggesting solutions instead of perpetually yelling at each other like opposing fans at a football game.

I don't want to live in a panopticon anymore than you do. My point is that we don't live in a perfect world, and that none of us are perfect (I hold myself up as a prime example). We need to recognize the difficult situation we've put the people who serve our country through the intelligence community; we've asked them to protect us from our enemies, but we expect them to accomplish their mission without encroaching on our privacy or violating our rights. And WE SHOULD expect them to do both; that's the nature of the job. I'm just pointing out that we should recognize and acknowledge the position this puts them in and stop demonizing them. It's counter-productive at best.

I do not accept that all of the communications of every American must be surveilled and stored in order to accomplish the mission. We need to find the right balance between security and citizens' rights. But that's not something that can be accomplished by software engineers at the NSA, nor even by the head of the NSA. We need to elect political leaders who we trust to work towards finding that balance. And we need to recognize that not only will it be an uphill battle, but a long one: we will always struggle to find the right balance between privacy and security. It's been going on since the Declaration of Independence, and I'd bet my money it'll still be going on at the quinticentennial.

>I don't want to live in a panopticon anymore than you do.

Probably best to stop showing up to work at the panopticon then, you know, if you actually believe what you write. Lots of scientists fled Nazi Germany, the Manhattan project may not have happened without such people leaving.

Now lawyers argue about 'law' and due process and separation of powers yet the US government lies, spies, tortures, and murders without conscience.

I have no problem voicing my beliefs publicly. I'm always more than willing to explain the policies of the NSA, and happy to denounce the actions of Edward Snowden. I don't think he was a traitor, by definition, but what he did was wrong. It isn't necessary to divulge confidential information, the situation is pretty clear. I don't see any point in re-litigating the whole thing on this particular thread though, it would be off topic.

I just wanted to say that people who support the NSA aren't hiding in fear. Only a small minority of people who work for the government, directly or as contractors, are ashamed of their employer or having a crisis of conscience. In general, nothing polarizes people and brings them together like an external threat. If everyone is shouting that you're bad, the most basic human instinct is to shout back even louder.

This whole thing has been a delight for management in the intelligence services. Some employees and contractors are much more motivated now. And many of those who support Snowden are still indifferent about the issues that he raised. It's either "go team!" or "eh, a job's a job." Only a minority are racked with self-doubt because of what's being posted about their employer on hackernews and reddit. Most will gladly tell you what they think, openly or in private, with no fear of criticism or backlash.

So is that essentially to say you agree with surveillance of citizens, without warrant or probable cause?

It's ok because:

- only the "good guys" do it

- No one ever abuses it.

- Even if someone abuses it they would never just get a slap on the wrist (maybe just fired, and security clearance revoked) rather than criminal charges.

- The disincentive for abuse is "patriotism" and no one has ever decided not to be a "patriot"... ever.

- Absolutely zero people in government seek out power, or have weird ideas about controlling what other people can do or think.

- No one in the intelligence "community" would ever abuse surveillance to (e.g.) blackmail politicians for funding/votes/more power. Because every single one of them always make 100% perfect moral choices.

- It's only used for "threats to national security"... except when it isn't, but the winning the "War on Drugs"/spying on animal rights activists/making sure US companies win bids for foreign contracts/making sure that the correct politicians are re-elected really all fall under the umbrella of "National Security" if you think about it...

>> If everyone is shouting that you're bad, the most basic human instinct is to shout back even louder.

Citation needed. Even if this is the case, then it is lucky that we developed cognitive tools that allow us to reflect on our actions and try to comprehend why those people are shouting at us in a civilised society.

Well this is basically part of how you try to convince someone of your opinion. If you only shout "you are bad", you are going to get shouts back.

It's all about the way how to have a decent discussion. If you first acknowledge that the other party has some good points (for example, acknowledge the need for the government to acquire intelligence), and use that as a basis for further discussion, you have a much better chance to get rid of that instinct and have a reasonable discussion.

Right now, as we did/do with the people of wallstreet, it's a kind of "you are either with us, or against us" discussion. No good ever comes from that.

If it gets to the point where someone is hacking into my personal communications I no longer am interested in conversing that person. Our differences are too fundamental for a conversation to be productive. My interests at this point are seeing that this person is stripped of power and brought to justice (the knowledgeable members of the NSA should be put in jail, just as any other group conspiring to commit a felony would be). No conversation is going to result in them agreeing that they should be stripped of power and jailed, so discussion is pointless.

The discussions I'm having are not with members of the NSA, they're with other people who might potentially be able to help at least prevent further criminal activity by the NSA.

> Right now, as we did/do with the people of wallstreet, it's a kind of "you are either with us, or against us" discussion. No good ever comes from that.

It also doesn't help that most anti-Wall Street rhetoric has much in common, either intentionally or unintentionally, with antisemitic dogwhistles.

Enough of Wall Street's population is Jewish that they recognize the dogwhistling and tune out.

> I just wanted to say that people who support the NSA aren't hiding in fear.

Unfortunately, that doesn't appear to be backed by evidence. Every single lawsuit challenging mass surveillance has been resisted by the Executive on the basis of state secrets and lack of standing. The Executive is using a judicial tactic to avoid having to answer the question of whether these programs are constitutional. When that question is asked, it usually ends in the programs being illegal[1][2][3].

So if you're not afraid, would you mind answering some questions? One of the biggest problems I have right now is that your side simply stonewalls or deflects core questions thrown by my side. I would love to be convinced that what you're doing is right.

1) How are broad secret court[4] and non-court[5] orders constitutional? The 4th Amendment appears to only allow targeted warrants, so from where does the government draw this broad surveillance power? So far, the only legal defense been invoking the state secrets privilege[6], which prevents the core question from being addressed.

2) How is the DEA's parallel construction program[7] constitutional? This seems as if the DEA is not allowing a fair trail by withholding evidence from the defendant.

3) If you think the above are unconstitutional, why should they be allowed to exist? How can the rule of law persist with unclear or secret exceptions? Are there things that are more important than the rule of law? What possible impacts does this prioritization have?

I thought we should strive to live under a rule-of-law, and I feel like the Executive and their workers (including you) don't mind having a rule-of-man system. Please convince me otherwise.

[1]: http://arstechnica.com/tech-policy/2014/12/cops-illegally-na...

[2]: https://en.wikipedia.org/wiki/Kyllo_v._United_States

[3]: http://www.nytimes.com/2015/02/07/world/europe/electronic-su...

[4]: https://www.eff.org/deeplinks/2013/06/what-we-need-to-know-a...

[5]: https://www.eff.org/issues/national-security-letters

[6]: https://www.eff.org/nsa-spying/state-secrets-privilege

[7]: https://www.eff.org/deeplinks/2013/08/dea-and-nsa-team-intel...

I think you're focusing on the wrong thing. It doesn't really matter if it's legal or constitutional, because if it's not then they'll change the laws or reinterpret them in a new way or write a new Patriot Act.

What we should focus on is whether a government should be allowed to operate in secrecy, without any public oversight or knowledge, and whether the government can be morally justified in surveilling citizens without probable cause.

It matters to me, at least, that the law be followed as written. Rule by whim and secret dictate does not seem like a good system of government.

It matters to me too, but it's not the root of the problem.

What if the law says that secret courts can decide using secret proceedings?

> What if the law says that secret courts can decide using secret proceedings?

Then at least it's on the books as a choice our society has made. OP's issue is there's currently no clear legal chain of certain programs back to a democratic decision.

The FISA courts have been authorized by an Act of Congress. That's what the checks and balances are for, though, and the courts can overturn it.

I wonder if the system will stand uo though. The addiction to bigbdata is strong once tasted, and spy agencies actually enjoy getting away with stuff.

>Then at least it's on the books as a choice our society has made.

A handful of elites handing responsibility to a handful of FISA judges in closed/secret court is far, far a choice "society" has made.

From the norms and practices of the USG, I imagine almost everything the NSA does is perfectly legal. SCOTUS will respect the Executive in terms of its state secrets argument and Congress's leadership in handing responsibility to managing these things to FISA will also be deemed lawful.

"What we should focus on is whether a government should be allowed to operate in secrecy, without any public oversight or knowledge, and whether the government can be morally justified in surveilling citizens without probable cause."

Actually, it is the problem for precisely that reason. What it boils down to is the Rule of Law. If the people at the top can do anything they want and never face any sort of prosecution, it not only sets precedent for the rest of the big wigs to act the same way (banking crisis anyone?) but it also reveals the farce in a more public way than has been true in the past.

The rule of law has never been perfect, and certainly so in America, but I feel like before the internet only the most egregious violations came to light, whereas now the farcical nature of the system is being revealed across the board. When there is an undermining of the rule of law, people will begin to completely disrespect it, and society will actually become more lawless (in the sense that people break laws willingly).

This is beyond the three felonies a day rhetoric. I think the inner city is a perfect microcosm of this.

Clapper lied to congress bluntly. He should be facing prosecution. Why isn't he? Because DOJ or whatever DA doesn't have the balls. Why don't they have the balls? Good ol boy system? Corruption? Blackmail? (you know NSA has the dirt on the entire SCOTUS and DOJ) Take your pick, the point is that the branches of government are compromised. (including the fourth estate).

If you want things to change, the very first thing that we need to do is prosecute and jail those who are undermining the Constitution and doing so in blatantly illegal ways.

Without justice there can be no peace.

Really the problem is the people we are electing. The voting public has the effectiveness of their vote diminished by a forced two party system and lack of campaign reform. We also have a large voting base that are single issue voters and don't care about anything except a single social issue like reproductive rights or marriage equality. Getting the right people in office would solve this problem but Americans aren't informed or interested enough to make this happen.

1) I see nothing in the constitution that requires all court business to be done in public. The sixth grants a person the right to a public trial. As far as I know the secret court has never held trials, they have only granted warrants and other bits of due process that are not required to be public.

2) Seems to be a clear violation of the sixth amendment to me.

3) You seem to be a little to black and white to me. It is possible to think that they have done the wrong thing in some cases and need to be brought back in to line but not think that we need to completely destroy the government's ability to function.

> 1) How are broad secret court[4] and non-court[5] orders constitutional?

There are two broad concepts these rest on.

First, is that many of the NSA's activities do not require court oversight in the first place, because they rest on the executive's broad powers in foreign affairs. By and large, the Constitution does not apply on foreign soil, and so the NSA does not need a court order to spy on e.g. Angela Merkel. The crucial thing to understand about the FISA Court is that it's not an attempt to take something that previously required a warrant from a regular court and make it a secret proceeding. That would be unconstitutional. Instead, its an attempt to take a process that Constitutionally requires no court oversight and inject some court oversight to ensure that the NSA stays within its foreign mission.

The second broad principle is Smith v. Maryland plus the broad subpoena power. Smith v. Maryland says that information you put in the hands of a third party is not protected by the 4th amendment. The subpoena power says that you can always be compelled to turn over information pursuant to a valid investigation. The subpoena power is very old. It predates the Constitution by hundreds of years.

The anti-NSA side generally misunderstands the context of the 4th and 5th amendments. The background rule is that the government is entitled to evidence relevant to an investigation. Heck, even private litigants are so entitled. If you're suing a company, you can serve a subpoena on a third party obligating them to turn over documents relevant to the lawsuit. The 4th and 5th amendments are exceptions to those broad powers. And in an age where everyone's information is floating around in the "cloud" where third parties have access to it, Smith v. Maryland gives the NSA a very wide latitude in which they can operate and still in good faith say their programs are legal.

Thanks for the reply! Just so I understand, the third party doctrine and pen register precedents are what these programs rely on? If so, why haven't they been defended on such grounds?

The EFF, ACLU, and now Wikipedia have a whole bunch of lawyers who strongly disagree with your assessment, but they have been unable to argue these points in an adversarial court because the Executive has resisted even addressing the question. If the Executive's opinions are backed in strong legal precedent, it would save everyone a whole lot of time if they just got to those points.

I absolutely agree that they should let a court decide what the law is.

As usual, rayiner has answered these questions better than I can. Here is my take anyway:

1) The short version is that there is a difference between collecting information and looking at it. The NSA doesn't look at or act upon any metadata it collects without first obtaining a warrant from a judge. It just sits there on a server until government lawyers can convince a judge that evidence shows that the data is relevant to a time sensitive security matter. You may not personally believe the government when they say that, or trust that they will always get a warrant to look at information that's already in their possession. But, that's the process. As of right now, the judicial system takes them at their word. That's why the 4th amendment isn't being violated. They still need a warrant.

2) Evidence collected via parallel construction is not withheld from the defendant, just the method of obtaining it. If the DEA says "We have a tape of the accused discussing drug trafficking", that defense will be notified of that tape's existence during discovery and will be able to hear it and prepare for it before trial. It's just that the DEA won't have to say exactly how they got the tape, as not to reveal the full extent of surveillance programs. This may or may not be an unfair advantage for the prosecution, depending on the details of the case. That's why we have judges, who are in fact specialists at deciding what's fair or not fair to present as evidence during a trial.

3) The Executive, Legislative and Judicial branches of government have all weighed in on these programs and approved them in some form. That's the bottom line. You may disagree vehemently with their judgement, but this is how the American system of government works. If all three branches of the government agree that something is legal, then it's legal. Everyone is allowed to interpret the language of the constitution in their own way, but that has nothing to do with the rule of law. If you have a different interpretation than the government, vote as many of them out of office as you can and encourage others to do so as well.

I don't agree with you, but I fully support your use of the democratic process to change public policy to suit your beliefs.

First, thanks very much for replying. This the first time I've been able to get direct answers to these questions. I really appreciate that you took the time to reply.

That being said, we do seem to have a significantly different interpretation of the Fourth and Sixth Amendments. Hooray! We've identified a big root cause of our disagreement! It's a start.

Additionally, I do not agree that the Legislative has been sufficiently informed of mass surveillance programs, and sometimes they have even been knowingly misinformed[1][2][3].

Finally, I do not agree that the Judiciary have signed off on these programs. For the public-facing Judiciary, they haven't even been able to get to the point where they can address the legality of these programs because the Executive have always blocked with standing and state secrets claims[4][5][6]. For the secret Judiciary, it seems that the Executive has also misled them[7][8]. Also, these courts are not adversarial, which opens them up to severe bias and capture[9][10].

Thanks again for your response. Would mind giving some citations to support your positions? I've tried to cite evidence for all of my positions.

Normally, the next step is to try to think of a set of criteria that would settle the differences. Here's mine:

1. The Supreme Court rules that mass collection of domestic information by the Executive does not require a warrant (thus confirming your interpretation of the Fourth Amendment).

2. The Supreme Court rules that parallel construction is constitutional (thus confirming you interpretation of the Sixth Amendment).

What are yours? What criteria would change your position?

[1]: http://www.forbes.com/sites/andygreenberg/2013/06/06/watch-t...

[2]: http://www.theguardian.com/commentisfree/2013/aug/04/congres...

[3]: http://www.usatoday.com/story/news/nation/2014/01/14/sanders...

[4]: https://www.eff.org/deeplinks/2013/02/supreme-court-dismisse...

[5]: https://en.wikipedia.org/wiki/American_Civil_Liberties_Union...

[6]: http://arstechnica.com/tech-policy/2015/02/fbi-really-doesnt...

[7]: https://www.techdirt.com/articles/20130821/16331524274/decla...

[8]: http://www.slate.com/blogs/future_tense/2013/06/17/governmen...

[9]: http://www.theguardian.com/world/2013/jun/20/fisa-court-nsa-...

[10]: http://www.washingtonpost.com/2014/07/05/8139adf8-045a-11e4-...

Marbury v Madison says that the Supreme Court has the final authority to interpret the Constitution. Whatever they say about the Fourth and Sixth Amendments is the law of the land. I might change my mind based on the actual arguments used and the logic in the written decisions, rather than the ruling itself. It seems like you would be open to change as well, which is indeed a good sign.

rayiner is the one to go to for citations and case law. If you think that something in particular that I've said is factually incorrect, then I will gladly stand corrected. After going through your citations, there seems to be a lot of differing opinion and blame shifting regarding who said what and when. I'm not surprised that politicians and judges would say "The NSA never told me about X or Y" if the programs appear to be unpopular. If the Legislative branch is really unhappy with the NSA, they can propose a budget that cuts their funding. The Executive can threaten to veto a budget unless NSA funding is reduced. The Supreme Court can take up any number of cases, including Wikimedia's, at any time.

I'm glad that we were able to exchange ideas, but the decision is ultimately up to the political process. We'll see how it turns out.

Not surprised. We heard the exact same reaction from Wall Street after 2008.

> I don't see any point in re-litigating the whole thing on this particular thread though, it would be off topic.

Would you care to litigate it somewhere else ?

Don't you think that your observations could be naturally distorted by survivorship bias? I mean, it would be very hard for people to have a conflict between beliefs and their job duties for a prolonged time; something gotta give. Those who stay, change their beliefs (or articulate their loyalty at least to themselves and, perhaps, become "more motivated" as you describe) and those who keep their beliefs just quit and you no longer see them around.

So we live in a country where members of the government can brazenly talk about how they conspired to commit felonies against citizens with no fear of criticism or backlash. Great.

I work in the solar industry, and utilities are increasingly losing talent to the solar industry (my co-founder is one of them). The main reason people are switching is because they see themselves as having a more successful career in the solar industry.

How can we make it so security talent has a better career working somewhere else? It could be multi-pronged. A combination of increasing private sector jobs and pay, decreasing public sector funding, and a healthy dose of public shaming might drain spying organizations of some more talent. Other thoughts?

> How can we make it so security talent has a better career working somewhere else? It could be multi-pronged. A combination of increasing private sector jobs and pay, decreasing public sector funding, and a healthy dose of public shaming might drain spying organizations of some more talent. Other thoughts?

You're never going to get open publishing / access to NSA research / infrastructure. So it's always going to be an interesting place to work.

Of the options, I think public shaming is the most viable. It's ridiculous IETF / IEEE / {insert org here} doesn't throw people out (to my knowledge?).

They might have inside knowledge and believe that the NSA is in the right, but they would not be able to voice that belief to us, their friends and colleagues.

Given the way classified work is compartmentalized, I think any such belief would be either very narrow and heavily qualified or - more likely - mostly a matter of faith, emotion, and ego.

No grunt knows what all the grunts are doing.

Their opinions are bought and paid for. At current rates its 75 Billion dollars a year.

If you would like to put words in my mouth, please at least put the right ones in there for me. Otherwise, I'll take that $75 billion you are referring to and let you say whatever you want on my behalf.

In all seriousness, you can support the Federal Government and still have constructive debates.

EDIT: My point is no person is getting $75 billion just to shut up and have their opinion swayed. Being loyal to the Federal Government does not bar you from using its processes to improve its processes.

Good luck. That $75 Billion is only going up. It stops when we can't afford it. Until then everyone can keep debating all they want.

This script has already played out in the sphere of Nuclear Disarmament.

The day I take the defense and intelligence communities opinions seriously is the day they drastically change their goalposts. Spend the same amounts on world peace or just take the cash and prey on people's fear of the next ISIS or Boston bomber. Everybody knows what the easy choice is.

His point is that the military industrial complex is a serious issue - its not just the NSA. Even if we get rid of the NSA today, there's still going to be a billion dollar industry around making the world a nastier place to be.

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