What is a reasonable articulable suspicion?
According to documents released in a Freedom of Information Request lawsuit by the Electronic Frontier Foundation, Reasonable Articulable Suspicion (RAS) is the standard by which the U.S. Government/NSA deems a citizen to be someone they can put under surveillance because of alleged relation to someone or an organization they regard as a threat. The exact wording of the government’s definition is:
“An identifier will meet the Reasonable Articulable Suspicion Standard is based on the factual and practical considerations of everyday life on which reasonable and prudent person act, there are facts giving rise to a reasonable articulable suspicion that the identifier is associated with one of the specified Foreign Powers.”(1)
What level of standard is RAS?
According to another document from the Office of Deputy General Counsel for the NSA, Reasonable Articulable Suspicion is described as the lowest standard of proof needed to investigate an individual. Moreover, this document expands on the very lax attitude towards spying on civilians:
“Note that the standard (RAS) does not present a particularly high hurdle. The level of evidence demanded by the standard is considerably less than proof by a preponderance of the evidence, meaning that here one need not show it is likely than not that a number is associated with (REDACTED list of Foreign Powers).(2)
What is the clarity level of this interpretation?
One major problem in these documents is the lack of specificity by the government of what “Foreign Powers” are and what criteria are used to designate a foreign power to meet the standard. This means that a person could potentially have friends or family in a country that is designated as a “Foreign Power” and any contact with those people via electronic methods could potentially be flagged as being “associated” with a Foreign Power. “Foreign Power” can be construed to mean a lot of different things based on context. Reasonable Articulable Suspicion is the same standard applied to the Section 215 meta-data program and the phone numbers within its database. If your phone number within this system is connected in some fashion to a phone number designated as being related to a foreign power or terrorism of some kind, a U.S. citizen could then fall under surveillance. The clarity of this interpretation of RAS is so broad and vague that if the government wanted to inquire more into a specific person’s life, the threshold for justifying doing so is nearly non-existent. Basically this interpretation means the government can exercise its imagination in justifying surveillance, which according to NSA Review Panel member Cass Sunstein would constitute a “Conspiracy Theory”.
What is a conspiracy theory according to Cass Sunstein?
A conspiracy theory according to Cass Sunstein is:
“An effort to explain some event or practice by referring to the secret machinations of people who have also managed to conceal their role.”.(3)
Sunstein goes on to argue that conspiracy theories in a free and open society with governmental checks and balances are quite often proven to be untrue.(4) However there are counterexamples but it does mean that institutional checks make it unlikely, in such societies, that people and groups can keep dark secrets for extended periods, at least if those secrets involve important events.(5) By implication, Sunstein is also saying that even in truly open societies, less than important events can be more easily kept secret.(6)
A further question about conspiracy theories – whether true or false, harmful or benign – is whether they are justified.(7) Justifications and truth are different issues; a true belief may be unjustified, and a justified belief may be untrue.(8) Sunstein doesn’t claim that conspiracy theories are always wrong or unwarranted.(9) There are plenty examples of them being true but if knowledge producing institutions are generally trustworthy, in part because they are embedded in an open society with a well-functioning marketplace of ideas and a free flow of information, then conspiracy theories will usually be unjustified.(10)
On the other hand according to Sunstein, citizens of societies with systematically censored, malfunctioning, biased, or skewed institutions of knowledge – say, people who live in an authoritarian regime lacking a truly free press – may have good reason to distrust all or most of the official denials they hear.(11) For these individuals, conspiracy theories will more often be justified according to Sunstein, whether they are true or not. (And because of the absence of democratic safeguards, they will more often be true as well).(12)
Does the government’s interpretation of the RAS standard enable the government to open investigations/surveillance based on what is tantamount to “Conspiracy Theories”?
Yes. The basis for this argument is the very broad and vague definition that provides a sufficient amount of necessary political maneuverability by the government to “legally” justify putting a citizen under surveillance. If Reasonable Articulable Suspicion is so broad and vague we can assert that almost any reasonable argument will clear the threshold, even arguments tantamount to conspiracy theories. If we use Cass Sunstein’s analysis of what constitutes a conspiracy theory and when/how they can be justified, we find in the highly secret and very poorly overseen world of the U.S. National Surveillance apparatus, the high probability of surveillance justifications on specific citizens being easily constituted as standard policy. In truly open societies and trustworthy government institutions, the likelihood of conspiracy theories being true is much less than in closed or authoritarian states according to Cass Sunstein.(13) This point is fascinating for a number of reasons.
In Part 1 of this research blog I conclude the U.S. National Surveillance state is Authoritarian in nature. The current administration has also investigated and prosecuted more people and journalists under the Espionage Act than any previous administration combined. Moreover, prominent people in the press have said this administration is the most closed and secretive in generations. I also recently explored in the Thoughts section of this research blog the nature of National Security and Double Government by leveraging the work of Michael Glennon. This piece of work persuasively argues that actual national security policy bubbles up to the Madisonian institutions from the Trumanite National Security network. In my most recent post in the thoughts section of this research blog I explore what happens when an authoritarian national surveillance state is aligned with an imperial executive function. The result? The nature of our government is no longer a democracy but an autocracy. If we use Sunstein’s definitions and analysis of environments where conspiracy theories are more often than not to be true and justified based on lax oversight and authoritarian government, then what are we to think about current American governance, oversight, and national security?
In August 2014 an overwhelming majority of Inspector Generals in the U.S. who are in charge of holding government accountable, wrote a letter to Congress complaining their investigations were being delayed and critical information was being withheld. In particular, the organizations were claiming some information as being “privileged” and above oversight. This rule allegedly comes from the Office of Information and Regulatory Affairs (OIRA), which Cass Sunstein just so happens to have ran for the Obama administration from 2009 – 2012. He published a book titled “Simpler” about his time in the OIRA office, but it appears Mr. Sunstein through his regulatory role made it simpler for the government to exercise its power through an ideological lens more than anything. More on this later.
During my email dialog with the NSA review panel and the progressive liberal legal community, at one point I started getting strange phone calls from a phone number out of country. Starting in February 2014, I received a total of ten calls over a few weeks that I never answered. I don’t get a lot of phone calls, I don’t receive many phone calls where I don’t know the number calling, and I almost never get phone calls from out of the country. After doing a search of the country code of the number that called me, I learned the number originated from the Islamic Republic of Mauritania. A search of the entire phone number produced no meaningful results. Given the nature of U.S. surveillance programs and the information revealed about them and the nature of my email dialog with the NSA review panel and subsequent progressive liberal legal scholars, I figured there was at minimum a reason to suspect the phone calls were connected.
Moreover, if we look at Reasonable Articulable Suspicion and the surveillance programs, how would the NSA effectively place a technically unemployed stay at home dad under “legal” surveillance? They would need a articulable reason and if the number calling me from the Islamic Republic of Mauritania was, in the National Security community’s mind, to be reasonably attached to what they determine to be a “foreign power”, then I would likely fall under their broad and vague definition by meeting their almost non-existent legal threshold. The U.S. state department on October 7th, 2014 issued a renewed U.S. citizen travel to the Islamic Republic of Mauritania because of increased terrorist threats due to U.S. military action in the region. In my humble opinion, I think the NSA and its partners probably have any phone numbers attached to the Islamic Republic of Mauritania as being reasonably attached to “Foreign Powers”.
It is not difficult to set up a phone number in a country. So it is plausible the U.S. National Security community and its foreign spying partners have phone lines in countries they dedicate as “Foreign Powers”. Phone numbers they can use to try and entrap citizens of interest in their surveillance network. The goal is obviously for them to try and do so with the highest amount of cognitive dissonance. After ten phone calls, I decided to craft an email to the NSA review panel and the legal scholars articulating this situation. I never received a response on my email but I also never received another phone call from the Islamic Republic of Mauritania ever again after sending that message. Moreover, by that point in time I felt this group of people was not going to directly challenge my arguments outlined in this research blog, so any potential response or reaction was going to come asymmetrically, if at all.
A few months later another anomalous event occurred. As part of my stay at home dad duties, while between projects, I had the task of giving away or selling toys my son no longer held interest in. One such toy that came into our possession happened to be a novel item but far short of a collector’s item. I listed it on ebay with many other items. It was the most expensive item I had listed and for months nobody viewed the listing, let alone bid on, or bought the item. To the best of my knowledge, it was the only item on ebay of this particular nature.
In late June 2014 I received notification from ebay that someone had committed to purchase the item but had not paid yet. I received a direct message from the buyer acknowledging my policy of no international shipping but asked if I would ship the item to Israel. Israel is one of the closest surveillance partners of the U.S. which raised my suspicions a little at this point. The buyer also acknowledged having a U.S. address but it would be very helpful if I would ship to Israel. Israel was in chaos over the summer and since it was a kid’s toy I felt compelled to do the best I could to reasonably help. The cost to ship this nine-pound item to Israel was almost as much as the item itself. In my opinion it was absurd, but nevertheless agreed to investigate costs and options. I eventually agreed to do the transaction, invoiced, and was paid. This is where it got more interesting.
The buyer’s name for shipping to Israel was only “Doctor (last name)”(Omitting actual last name for privacy reasons) No First name was given. The payment didn’t come from a named individual but a very generic corporate name for example like “International Systems”. No personal name on the payment was received. I started getting the sense the transaction was dubious in some fashion for a number of reasons.
- Israel just so happens to be one of the closest surveillance partners of the U.S.
- The item was novel but far from being a collector’s item.
- Buyer asked me to circumvent my policy of no international shipping.
- Shipping confirmation was not available via the method they requested. As soon as the item crossed into Israel I wouldn’t be able to track it.
- Buyer’s personal information and payment information were outliers in their lack of specificity of attributed details to a specific person.
- Buyer was paying an astronomical combined price (item cost +shipping) for an item that could be reasonably supplanted by a similar item easily purchased from any major online retailer or physical store carrying children’s toys.
The item was novel, but not so novel it would compel a reasonable person to go through the effort to locate it (I have sufficiently poor ebay marketing skills apparently). The buyer really had to know what they were looking for to find my item. I grew curious just how determined the buyer was to purchase this item. I decided to increase the buyer frustration level in order to tease out more information in order to make a decision and to mitigate my risk. So I informed the buyer that actual shipping costs were higher than what was originally quoted and I couldn’t absorb the delta difference, I also conveyed my frustration of that lack of shipment tracking once the item reached Israel. My interest was in mitigating my financial risks and others risks that come with international transactions, which is why my policy was no international shipping in the first place.
I knew my best alternative to not agreeing with the buyer was to simply cancel the transaction and return the money. I also acted with little sense of urgency to help clear issues with the buyer throughout the process. I finally just told the buyer that I would ship the item to their U.S. address and refund the difference in shipping costs, to which the buyer became upset, but they eventually did give me their U.S. shipping address but this time they left the last name empty and only gave a first name. I said I could not ship to a first name and needed all the information. At this juncture I had all the information I needed to make a decision and just cancelled the transaction and returned the buyers money.
The buyer was upset and claimed to be a Psychiatrist who works with Israeli children who suffer from post traumatic stress. I acknowledged the buyers statement and said it was a noble and respect worthy effort if it was true but also said they provided sufficiently poor qualitative information and actions in order for me to mitigate risk. The ebay account in question had been open for over 10 years but only had approximately 30 transactions with feedback in total during that time. Approximately half of those transactions were in the two months leading up to this event with me, most of the transactions were low dollar figure transactions. Mine would be considered a high dollar transaction. The account was unremarkable in every way, perhaps on purpose. But I thought mailing a nine-pound box that couldn’t tracked to a country that was a close surveillance partner of the U.S., was unacceptable risk. Especially risky to a country that was just entering a war with its neighbor. Someone could intercept my nine-pound box and insert something nasty on my behalf in that environment.
I felt this was another instance to have Reasonable Articulable Suspicion this was somehow related to my ongoing dialog with the NSA review panel and the progressive legal scholar community. Were the ideas, methods, and tactics I implemented in my dialog with them potent enough to really piss off some powerful and well connected people enough to have them employ state power in this way? I brought it up in an email to them and received no response but perhaps a Freedom of Information Act request on myself would illuminate some meaningful things to blog about.
What information could the U.S. Government have on a technically unemployed stay at home dad that they would want to keep secret? I don’t know, but if past is prologue I imagine the government would be looking for ways to discredit, embarrass, or coerce me personally in order to discredit or derail my personal research. The NSA and its partners do have their own handbooks on how to destroy someone’s life, so its not as if they don’t engage in this type of activity to some degree. It’s probably reasonable to hold suspicion they would try and perhaps continue trying. More to come soon.