On July 30, 2013, I had the pleasure of having dinner with General Keith Alexander, Director of the National Security Agency. Just a few weeks earlier, NYU Law Professor Christopher Sprigman and I had called the NSA’s activities “criminal” in the digital pages of the New York Times, so I thought it was particularly gracious of him to sit with me. General Alexander is an engaging man and our conversation left me with an appreciation for a fundamental difference in perspective between defenders and critics of the NSA’s surveillance program: whether you believe that unchecked power inevitably corrupts, or rather believe that the sincere intentions of well-meaning individuals will protect us.
I have no doubt that Gen. Alexander loves this country as much as I do, or that his primary motivation is to protect our nation from terrorist attacks. “Never again,” he said over dinner. But it may be that our deep differences stem from a fundamental disagreement about human nature. I think Gen. Alexander believes that history is made by great individuals standing against evil. I believe that brave people can make a difference, but that larger inexorable forces are often more important: history, economics, political and social systems, the environment. So I believe that power corrupts and that good people will do bad things when a system is poorly designed, no matter how well-intentioned they may be. More than once, my dinner companions felt the need to reassure the DIRNSA that none of us thought he was a bad man, but that we thought the surveillance policies and practices were bad, and that eventually, inevitably, those policies and practices would lead to abuse.
Nothing Gen. Alexander said at dinner differed from what I’d heard him say publicly before. He was a bit exasperated with me for disagreeing with him about the FISA Amendments Act’s impact on Americans, which was unexpected. He repeated that old saw about the NSA does not “target” Americans, and when I explained I knew about the contorted definition the NSA gives to that word, all he responded was “That’s wrong.”
The General seemed convinced that if only I knew what he knew, I would agree with him. He urged me to visit Pakistan, so that I would better understand the dangers America faces. I responded that one of my longest-standing friends has relatives there and visits regularly, maybe she would take me. I did not miss his point, and he did not miss mine. At one point he incredulously identified me as being “to the left of Senator Wyden”.
General Alexander also told us that the government soon would be declassifying the Primary Order associated with the Section 215 orders authorizing mass phone record surveillance that Edward Snowden had leaked, and he seemed confident that I would be reassured about the propriety of the phone records program once I’d had a chance to review the FISA court rules governing that collection program.
To further persuade me that the Section 215 phone records surveillance was a moderate and well-regulated program, he offered to show me an advance copy of Senator Dianne Feinstein’s op ed to be published the following day. General Alexander pulled up the text on his Blackberry and handed the device to me so I could read. As I sat there stunned, one of our dinner companions leaned over and stage whispered to me, “You are holding the DIRNSA’s Blackberry.” Too classy to demand that someone, anyone, take a picture, I simply read the text, and then moved my finger along the screen in an effort to scroll down. The computer security expert next to me showed me how to use the BB trackball, while General Alexander teased, “Don’t be so West Coast, Jennifer.”
I had a chance to read the Primary Order the next day, and rather than reassure, it raised substantial concerns. First, it did not set forth any legal basis for the phone record collection, which Christopher Sprigman and I have argued is illegal. Second, it confirmed that the FISA court does not monitor compliance with its limitations on the collection program, a problem that, according to a former FISA court judge, is endemic to NSA surveillance programs.
Even so, to comply with the order, the NSA says it queries its call-records database only when there is "reasonable suspicion, based on specific and articulated facts" that an identifier — such as a telephone number — is linked to specific foreign terrorist organizations. Allegedly, the NSA queried fewer than 300 unique identifiers under this program in 2012. And, the queries must be approved by one of 22 officials at NSA.
The devil is in the details. Assuming this is, in fact, what happens, an approved single query means the analyst can conduct up to a three-hop search through Americans’ phone records. Assuming each individual has only 40 unique contacts, this means 64,000 records accessed per query. Once the query is conducted, the Primary Order allows the NSA to combine the results for future, unrestricted analysis in something called “the corporate store”. If my numbers above are right, 19 million phone records went into the corporate store in 2012 alone. Thus, whatever initial limitations on querying there may be, there are ultimately no controls on how this data is ultimately used.
I remembered our conversation about the Primary Order yesterday while reading the newly declassified FISA court opinion that tangentially raised the phone records surveillance program. According to the court in 2011, NSA was flagrantly disregarding the dictates of the Primary Order anyway:
[T]he Court concluded that its authorization of NSA’s bulk acquisition of telephone call detail records … in the so-called “big business records” matter “ha[d] been premised on a flawed depiction of how the NSA uses [the acquired] metadata” and that “[t]his misperception by the FISC existed from the inception of its authorized collection in May 2006, buttressed by repeated inaccurate statements made in the government’s submissions and despite a government-devised and Court-mandated oversight regime.” … Contrary to the government’s repeated assurances, NSA had been routinely running queries of the metadata using querying terms that did not meet the required standard for querying. The Court concluded that this requirement has been “so frequently and systemically violated that it can fairly be said that this critical element of the overall … regime has never functioned effectively.” (Footnote 14)
How does a good man sit across from you at the dinner table and assure you the government is properly constrained, when in reality it lies and disregards even the most anemic purported safeguards? The easy answer is that he’s not a good man after all. Some people will call me naïve, but I disagree with that conclusion. In any case, it's a simplistic view that masks the truth about systems of power, a truth we must understand and respect if we are to fix this surveillance nightmare we are just beginning to uncover.
Of course, we see mission creep – once you build the mousetrap of surveillance infrastructure, they will come for the data. First it was counterterrorism, then it was drug investigations, then it was IRS audits. Next it will be for copyright infringement.
And of course, there also will be both "inadvertent" and intentional abuse, inevitable but difficult to discover. Bored analysts do things like spy on women using surveillance cameras and listen to American GIs overseas having phone sex with their loved ones back home. Or an FBI agent may investigate strange but not unlawful emails on behalf of a family friend, leading to a sex scandal that brings down the Director of the CIA. These surveillance tools and information databases may one day end up in the hands of a J. Edgar Hoover and a President demanding embarrassing information about her political opponents, information that, in an age of mass surveillance, the government most assuredly will have somewhere in its treasure trove.
Liberty and security are the hard-won results of democratic process and limited government power. A system of mass surveillance puts innocent people at risk, and is, in itself, an abuse of liberty. Inevitably, it leads to further abuses. When the justification is counter-terrorism, and that’s your only concern, there is no countervailing interest that justifies slowing you down or stopping you. We are only beginning to learn all the ways in which good men are nevertheless failing to withstand the corrupting force of vast spying abilities. Indeed, the FISA court noted in that 2011 opinion that the government's collection of tens of thousands of purely domestic communications, hidden from the court for years, could be a crime. (Footnote 15) The good people at NSA have literally pulverized the Fourth Amendment, government accountability, freedom of expression, rule of law, and so many other equally critical components of the American system.
