The Future Of American Surveillance: Obama's FISA Firestorm

As America waits to die and be reincarnated, there's a storm raging in Obama's core base and it's one I'm part of. An interest forum was started on "My Barack Obama" over his support for the renewed Foreign Intelligence Surveillance Act, one which renders telecommunications providers immune from any civil suits arising from illegal surveillance of US citizens. In 6 days the group, aptly named 'Senator Obama--Please Vote Against FISA' grew to over 20,000 members.

Just as internal dissent crested, Obama responded by re-clarifying his position on July 3rd, basically saying that 1) the revised FISA is an improvement over the Patriot Act, 2) we need to have something like it, and 3) he'll work to strip telecom immunity from it later. Obama's response was pretty good--his subtext even says, "stay up in our grillework on this one"--but it's destined to be overwhelmed by events, events that will be interesting, sort of like when Ulysses sailed between Scylla and Charybdis was "interesting."

There are a mountain of details surrounding FISA, the NSA, new agencies under DHS, and the legislative battles to wonk out about, but let's gloss over what I learned from reading 1,000+ emails on it over the holiday weekend and cut to the chase: is it spying for a government to record your every phone conversation, fax transmission, most of your emails, and peek at your computer data?

I hate to grant this to the Bush Administration, but to a legal beagle, that's a pretty fair question. Fertile grounds for interpretation, and that's what lawyers will do until you take a shovel and whack it over their heads until the whimpering sounds stop coming out of their mouths. Definitions of privacy, the limits thereof, and what it constitutes have not been considered in a digital context for the citizens. For companies familiar with the terms "fair use" and "safe harbor," yes, it has been duly considered under the Digital Millenium Copyright Act, which treats commercial artists, software publishers, and the companies who treat them like serfs as virgins inviolate. In a nutshell, however, average Americans don't have any digital privacy rights whatsoever. The reasons for this are surprisingly technical.

When I say, "you're being spied on," it might sound paranoid. Sure, I may be a smidgen prone to paranoia, and that might be related to, oh, working with data mining, security, and call processing at companies involved in so-called warrantless wiretapping. All of a given day's phone conversations can be stored on a drive smaller than a box of Kleenex, and they can all be searched for keywords in real time. Naturally, it's most efficient to perform these operations directly at telecom network operations centers.

For regular folks who avoid saying "tomorrow's VX shipment to Turkey" on the phone it's no big deal, really. Unless you're bored muslim teenagers from Buffalo talking big, the defense lawyer for a charity which gives money to poor Albanians, or are having an affair with the spouse of one of the 25,000-50,000 people who works for the NSA, you're pretty much in the clear! No, the reason you're being spied on at all is mostly due to incompetence. The government's way of finding a needle in the haystack is to say, "Yes, yessss. I know precisely what we must do to find that needle, Mr. President. We will make the haystack bigger!"

Government agencies aren't necessarily listening to what you're saying--they just figure that, given that you're a potential terrorist, they might need to at some point. I mean, wouldn't it look really bad for some poor slobs just looking forward to a quiet pension if it turned out you had been a terrorist all along, and nobody was paying any attention to you? It's cheap to record and archive, and there's a new haystack every day. It starts seeming a reasonable thing to do, and there is ample precedent for surveillance and curtailment of privacies in the US during wartime. You can buy the legal argument, as counsel at many (but not all) telecoms did, that it doesn't violate the Fourth Amendment.

Personally, if I were forced to design a system for this particular government, I would doom it to elegant failure, and the people who've built ECHELON and its sister systems took a similar approach, albeit unintentionally. Well, wait--I'm really not so sure it was unintentional. If they wanted it to actually work, the general approach is simple. You'd make up something like a Terrorist Credit Score, a haystack-reducing device, stop looking at the 99.999% of hay and devote your resources to the needles. With their approach as it is, you could possibly build something predictive by associating terrorist-style outcomes with long data trails, but the incidence sparsity is a huge problem. Anyhow, combating terrorism is a convoluted rationalization, and not really the point of the 50-plus billion dollars the US now blows on digital spying every year.

Here's the real problem, one might say the Scylla with Obama's FISA support: he seems to assume surveillance works and should continue. Of these misapprehensions he should be thoroughly disabused, and that's why I'm one more thorn in his side. These systems are clearly outside the spirit of the Constitution, shouldn't be applied domestically, and they suck at catching terrorists. (Which...is...maybe...why they haven't caught any! Any real terrorists know they can communicate in complete privacy by FedEx-ing crayon drawings to each other.) What Total-Information-Awareness eavesdropping and data-mining excel at is controlling persona non grata via information blackmail or selective leaking. At that, the systems are top-notch, a totalitarian's wet dream for monitoring and stifling opponents, or as they call them in D.C., "friends."

I do not know a specific example in which surveillance has been used domestically to control congressional votes, but the irresistible temptation to do so should be manifest to every reader of current and historical affairs. In other words, it is to be strongly suspected, and may have something to do with the behavior of Congress and its attendant 10% approval rating. Applied offshore, there is even greater temptation and the lines of national security blur very quickly. To name a few examples, the NSA eavesdropped on Lady Diana's cell phone calls from its station in Scotland. To help Boeing make jet sales, it ratted out Airbus bribes to the Saudis. It has passed surveillance data on proprietary German wind turbine technology to an Enron subsidiary, which then filed a US patent on the trade secrets. Of course, these latter banalities are also outside the NSA's current charter, but no one's counting anymore.

It's hard to think of an example of a state domestic spying apparatus which was ever voluntarily given it up, but easy to think of how over-reliance on domestic spying brought regimes down. (A German-language film, 'The Lives of Others,' is great drama and effectively portrays why most surveillance is really conducted.) To walk for a moment in Obama's shoes, one would understandably be cautious when addressing a powerful security apparatus which shows every sign of having been usurped, just as Presidents once needed to stay on J. Edgar Hoover's good side. But once the apparatus is turned on innocent citizens, when the state's paranoia has gone so far, the only step left in the choreography is to turn upon itself. If privacy isn't extended to digital media, and the pre-snooping isn't made expressly illegal, it's going to get ugly here.

Whatever the outcome of Wednesday's Senate vote on FISA, it's not going to end there. Above, I mentioned that events will overwhelm Obama's stance on FISA and telecom immunity, and will quickly snowball into a question of spying in general. Here's what I meant, and welcome to Charybdis: just imagine how Rush Limbaugh and the Reich Wing will react when they realize Obama is able to spy on them.