Thoughts – What Does Obama & His NSA Review Panel Really Think About Security & Surveillance?

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As stated in a previous post regarding how this research project started, Part 1 and Part 2 of this research blog were written in June and October of 2013.  Part 3 was written in 2011 as my Masters Thesis at The Fletcher School of Law and Diplomacy.  After writing Part 1 in June 2013, I decided to take the opportunity to distribute it to as many scholars, thought leaders, journalists, and business people I could find who were speaking and writing publicly on surveillance, security, and technology.  The Snowden revelations have stirred quite a public debate about these topics and I thought at the time some of those people might be interested in my findings.  Moreover, I was also looking to see if anyone had a different point of view and or perspective I had not taken into consideration.  So I crafted a standard email and sent it with the paper that comprised Part 1 to as many people as I could find who were publicly discussing the intersection of security/surveillance.  Everyone, more or less got the exact same email.

Surprisingly I didn’t get a lot of responses but I measure success by the number of people who respond and the nature of their responses, not by the number of people who do not.  You miss 100% of the shots you don’t take is my perspective and my tactic was aim and shoot and repeat.  I also knew in my gut there was another paper to write, but I didn’t know what it was going to be about just yet and hoped by reaching out to the broader community that process would illuminate for me where I should focus my efforts.  Out of no less than a few hundred emails sent, I received around 10 responses and those particular responses mostly came from the progressive legal scholar community.  They mostly tried to pour cold water on my research.  I thought that data point was interesting, but I had also used Jack Balkin’s framework for what constitutes a democratic or authoritarian national surveillance state.  Jack Balkin is a famous Yale legal scholar, but in my emails I didn’t explicitly say I used his framework, only by opening and reading my paper would someone learn that.  So it was a little hard to surmise what truly sparked particular interest from that particular community in general.  Being the impatient person I am, I gave myself a few months to send out emails and collect feedback because the nature of surveillance/security revelations was ongoing and more people kept joining the public conversation.  I kept taking shots when the opportunity was there for no other reason than I could.

One particular person who initially responded on September 13th 2013 was Geoffrey Stone from the University of Chicago.  He initially declined to comment because he had just been chosen by President Obama to sit on the NSA Review panel with Cass Sunstein, Peter Swire, Michael Morrell, and Richard Clarke.  You can see a comprehensive outlook on their profiles here in Part 2.  I respectfully thanked him for responding and asked him if he would be able to comment after the review panels’ work and report were published.  He said he didn’t know but that I should reach back out at that time.  In December 2013 the NSA review report was released.  After digesting the report and the two conflicting court opinions on surveillance that were also released in December I reached back out to Mr. Stone.

In the time between September 2013 when I originally reached out to Mr. Stone and late December when I contacted him again, I sat down and wrote another paper which is Part 2 of this research blog. That paper discusses the nature of technology and governance with respect to their impacts on constitutional rights, natural human rights, and economic advancement.  I had a high degree of confidence in the findings of my research that comprised Part 1 and Part 3, however since governance and technology both drink from the well of human ideas, I was curious how our national surveillance system became authoritarian and where do the ideas that support this particular brand of thinking of governance come from.  The answer come find out was right in front of my face.

Jack Balkin’s Paper, “The Constitution in the National Surveillance State” which I used as the framework for determining that the U.S. national surveillance was authoritarian in Part 1, was also published in a book in 2009 by Oxford University Press titled “The Constitution in 2020”.  Jack Balkin was a Co-Author of the book.  I had found Jack Balkin’s paper through a search but had no idea it was also in a book which had additional essays from the progressive liberal legal community.  The essays in this book touched on a broad range of topics as it relates to rights of man etc. but essentially it is the progressive playbook for governance.  There is a companion website to this book at www.constitution2o20.org. Do a comparative literature review and “The Constitution in 2020” is quite similar to Karl Marx’s “Communist Manifesto”.  It also just so happens that  Mr. Stone besides being a legal scholar is also the Editor and Chief for a book series at Oxford University Press titled “Inalienable Rights”.  It just so happens my local library had a copy of this book so I got it and consumed it.  Low and behold this book helped me write Part 2 of this blog in October 2013.  Part 2 was a very useful and powerful lens to also view the NSA surveillance review panel report when it was released a few months later in December 2013.

After digesting the NSA Review Panel Report a couple of things stood out to me. (Here is the Report)  While the report said all the right things about what the government should be doing, very few, if any, of the recommendations were accepted by the President when he addressed the public in January.  The only recommendation that I am confident the government took to heart from this report is the action of encrypting all government data at rest and data in motion coupled with intelligent multi-factor authentication technology. This is recommendation 45 in the report.  The reason I am confident this is being done, is because the report says President issued Executive Order 13587 in to enhance internal threat detection in government systems. Official records show the President issued this Executive Order in October 2011. (Here is the Order)

Given that Snowden was able to take the vast amounts of information he did  years later makes it obvious the internal threat detection plans were not fully implemented yet.  I am also confident before this panel made recommendation 45 in December 2013, the government was expediting the implementation of this order very soon after the initial Snowden revelations in June 2013.  What strikes me as incredibly hypocritical, is that right now, fall 2014, both Attorney General Eric Holder and FBI Director James Comey are making arguments against the public at large using encryption.  Here are just two instances:

Reuters: U.S. Attorney General Criticizes Apple Google Data Encryption

The Guardian: FBI Director Attacks Tech Companies for Embracing New Models of Encryption

In my follow up with Mr. Stone I expressed confusion as to why all the threats the report outlined were foreign threats and it neglected to discus any domestic threats.  The foreign threats the report states are Terrorism, Weapons of Mass Destruction, and Cyber terrorism/Warfare.(1)  The U.S. also faces domestic threats in my opinion and I posited  those threats are “misinterpretations of the constitution” and “positive rights.”  Our constitutional construction is designed to protect the people from government coercion and/or tyranny.  However, those in government probably do not want to recognize those are threats because those threats would come directly from the government itself.    Perhaps the NSA committee views “terrorism” as a domestic threat in the eyes of foreign terrorists being on U.S. soil and could at any time inflict harm domestically.  The problem with this is that the term terrorism has almost no meaning or definition that anyone can agree upon.  Thus the term terrorism as it relates to domestic threats is seen through the prism of the government having a “reasonable articulatable suspicion” that someone on U.S. soil is a terrorist in some way.  The government never sees itself as a threat to its own people, but it is actually our greatest domestic threat in the U.S. More on this in a later post.

Mr. Stone exhibited befuddlement in his response to my assertion that “Misinterpretations of the Constitution” and “Positive Rights” are the highest domestic threats to U.S. citizens.  These are not threats to the U.S. Government but to U.S. citizens so I was not entirely surprised. Progressives tend to practice the religion of state power and believe in their own virtue and benevolence as can be understood further in the pages of “The Constitution in 2020.”

While Mr. Stone and I were having this email conversation in January 2013, he published an article in The New Republic titled, “President Obama Asked Me To Review The NSA. Here’s How I Grade His Reforms.”  Mr. Stone basically doesn’t give an actual grade, but states what the three of the forty six recommendations the president plans to take action on.

1) 215 Meta Data Program – The government should not be in the business of collecting this data and the private sector or an independent third party should bear that responsibility. The private sector has pushed back on this and no formal “independent” entity has been proposed, debated, or approved.  Thus, effectively this is a non decision and the status quo continues.

2) Civil Liberties Advocate for FISC – The FISC only hears arguments from the government on surveillance programs/operations.  It has been proven to be a rubber stamp court with 99.9% of all applications being approved.  Panel recommended creating a civil liberties advocate to counter argue at the FISC.  The President accepted this recommendation, but put the burden of creating the position on Congress which effectively means he doesn’t accept it.  The Double Government Theory as it relates to National Security is why this will most likely never happen.

3) National Security Letters – The FBI should no longer be able to issue National Security Letters was the recommendation.  The FBI was vehemently opposed to this action and the President sided with the FBI. Find more information on National Security Letters here.

After that article was published I sent Mr. Stone an email asking the following question:

If the government cannot be responsible enough to hold this highly sensitive data, to what degree are you confident an “independent” agency can keep it sufficiently secure from theft and illicit use?

He responded:

1. The telephone providers ALREADY have the data.
2. Beyond the telephone meta-data, private companies have vastly more data about us than what’s involved in the 215 program.
3. The primary constitutional concern is about government — not private — abuse. As the Framers understood, the government can do far more harm to us than private organizations or individuals. The concern here is not so much leaks of the information (although the government can prohibit that with a private provider as well as when it holds the data) but with misuse of the information.

I responded:

So effectively what the panel and Obama are suggesting is a Federal Reserve Bank of Citizen Data? Not quite private, not quite public which means it falls into constitutional gray areas?

Seems like it only transfers the political risks, all other risks remain the same.

Mr. Stone didn’t respond to that and I wrote him back 24 hours later with the following and copied via email the four other NSA Review panel members:

When technology and telco firms know more about people than the government does, it is inherent in the nature of governance to seek rebalance. Governments have traditionally had the monopoly on the majority of citizens information, but now that is not the case. What is readily apparent from the list in your last email is that you believe and the rest of your panel members believe too (since the report recommendations were unanimous in agreement), is that the government feels it is entitled to citizens information. Agree?

If the amalgamated data exists in the form your panel suggests, it cannot be guaranteed today nor in the future that it is sufficiently secure from theft and illicit use by anyone, Government or otherwise. Perhaps your other panel members can help and weigh in here. The only reason your report suggests and the president desires to move the program out of the hands of the NSA but still capture the data is transferring/dispersing political risk. Sure, let the DOJ for the next few months find an apparatus for a seemingly private entity that in one sense is government, but in the other it is not but it looks on the surface to be narrowly “Constitutional” to have blanket warrants on citizens information.

Do you and the panel agree that our digital lives and our physical lives should both share the same set of civil liberties? Remember, where people sit is where they stand. Thank you.

Best,

Chris

Again, neither Mr. Stone nor any of the other NSA Review Panel members responded. What could they say? So I wrote again 24 hours later:

Geoff et al,

I think it is important to revisit a previous point of our discussion regarding “positive rights” and “constitutional misinterpretations” as core threats the U.S. I take it on your lack of response/rebuttal and position as chief editor of the “inalienable rights” books series that you disagree or just don’t want to publicly acknowledge at this time that those are threats to the U.S. Perfectly fine. Where people sit is where they stand. Fortunately, we have Mr. Sunstein who is has written prolifically on the topic and even attempted to defrost the notion of a second bill of rights that has been collecting freezer burn since FDR tried to start it in the New Deal days. While many of Mr. Sunstein’s ideas are novel, much like many of the ideas that come from the Center for American Progress, the implementation of those ideas is intellectually lazy because of the methods required to institute them. The methods are all laid out in a book I am sure you are familiar with “The Constitution in 2020”. The shocking thing is that the people/authors, some of you, are far from being intellectually lazy in my opinion.

The reason this is important? Jack Balkin’s essay within “the constitution in 2020” that is titled “ The Constitution in The National Surveillance State” does a tremendous job of providing a meaningful framework to understand our current predicament. In addition, he does a great job articulating how the information state is a natural extension of the social state because of the amount of information processing required to administrate social programs (Think Obamacare for instance). Balkin even goes so far as to articulate the differences between an authoritarian surveillance state vs a democratic surveillance state. The point is that you gentlemen and Obama feel entitled to all U.S. citizens data and all data of global citizens, even those within societies who are democratic or “free”. Guess which classification the U.S. currently falls in if using Balkins Framework? Can you guess which category the U.S. falls in after inserting Obama’s ideas form his speech on Friday?

Furthermore, Obama believes the collection should be ongoing and constant, but the government (Obama) cannot be trusted according to Obama’s speech on Friday and your panel’s report said the same insofar as trust. Obama Trying to reframe the debate from whether the information should be collected by the government or not to where the location the data should be held was a rookie sleight of hand attempt. The U.S. Government and National Surveillance has become and desires to continue being an information miser and everyone knows that over time governments will abuse this power. In this case the government will probably find ways of misinterpreting the constitution to institute positive rights for the people that are really only positive for the government, not the people because of the transfer of power. We also know the surveillance programs have had zero meaningful use in stopping any legitimate terrorist events.

The founding fathers put an intellectual bullet through the concept of tyranny by engineering the Constitution the way they did. That is its genius because it enables us a method to interpret novel ideas like “Positive Rights” and “misinterpretations” which are poised to do nothing but enhance the power of the government in insidious ways. Would you say that is a fair assessment? I am open to being persuaded otherwise if anyone wants to step in the ring. One would think at least one of you would have the stones to jump in, but perhaps prestige can only take a person so far.

Best, Chris

Here is the email dialog supporting the above discussion.  I didn’t get a response, but the experience did give me an idea and it also sufficiently proved to myself that my arguments, reasoning, and research were accurate and could be meaningfully utilized in additional ways.  In my next post I will discuss those expansions but nevertheless the NSA Review Panel, The President, Congress, nor the courts seem to have any real interest in protecting the rights of U.S. Citizens or global citizens for that matter….the U.S. government is only interested in its own security, not the security of the people.  More to come shortly.

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One Response to Thoughts – What Does Obama & His NSA Review Panel Really Think About Security & Surveillance?

  1. Pingback: Thoughts – What do America’s top liberal legal scholars think about surveillance, governance, and their own ideas? | @The Heart of Big Brother

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