Shrinking the Big Brother state?

May 27, 2015

Mukund Rathi explains the background to the partisan political battle over measures affecting U.S. spying--and why the so-called "reforms" don't go nearly far enough.

IT'S BEEN almost two years since the publication of National Security Agency (NSA) documents leaked by former NSA contractor Edward Snowden. With help from journalists Glenn Greenwald and Laura Poitras, Snowden ripped away the NSA's veil of secrecy and exposed a massive program of nearly unchecked government surveillance.

Both the documents and the public debates about them ended up indicting not just the NSA, but the entire U.S. corporate and political establishment. Today, with time about to run out on some of the government's authority to carry out domestic surveillance, some members of Congress were negotiating last weekend to come to an agreement on the misnamed "USA Freedom Act."

The legislation, which would curtail some aspects of the NSA's collection of phone records, is backed by liberal Democrats and some libertarian Republicans. But mainstream Republicans like Senate Majority Leader Mitch McConnell and Senate Intelligence Committee Chair Richard Burr oppose the bill on the grounds that it would hamper the government's ability to uncover terrorists.

NSA headquarters in Fort Meade, Md.

Despite what champions of the USA Freedom Act claim, however, these new measures are largely cosmetic, designed to quiet anger about domestic surveillance while allowing the government to continue with its spying, albeit in a slightly more palatable form.

AS THE Snowden leaks revealed, after the 9/11 attacks, the NSA and its "Five Eyes" imperialist partners (Australia, Canada, New Zealand and the United Kingdom) constructed a surveillance system to dominate the global Internet--and they broke every law and right to privacy that got in the way in doing so.

But that didn't stop the establishment slander campaign against Snowden--assorted politicians, bureaucrats and "journalists" condemned his whistleblowing and even called for his prosecution on treason charges.

At the same time, some establishment figures--including a few Republicans--also put forward criticisms of the government's overwhelming surveillance apparatus.

One of the revelations from the Snowden documents was that PRISM, the NSA's favorite surveillance program, collected data directly from the servers of the largest tech and Internet companies (particularly American ones). Facebook CEO Mark Zuckerberg and Google Chair Eric Schmidt voiced outrage at the spying, though as Noam Chomsky has pointed out, companies like Facebook and Google "do more surveillance than the NSA." Indeed, PRISM would not be possible unless these tech oligopolies had giant, centralized databases of our information for the NSA to access.

In early May, a federal appeals court ruled that the NSA's bulk collection of phone data was unlawful--leading the White House to embrace certain "reforms" that most leave the NSA's ability to spy on ordinary Americans untouched, as long as the 2001 USA PATRIOT Act is renewed again.

Among the reforms now embraced by the Obama administration is a restriction barring the NSA from pursuing eavesdropping on phone calls that are two "hops" or more away from a phone number associated with terrorism. Another measure described as a reform is to keep telephone metadata stored with telecommunications companies, rather than with the government, and to require a warrant from the Foreign Intelligence Surveillance Act (FISA) court for the government to access that data. This provision has been incorporated into the USA Freedom Act, and has the support of major tech and web companies and associations.

The USA Freedom Act has passed in the House, but failed by a narrow margin in the Senate as a result of Republican hardliners who want the ability of the government to spy on Americans to remain unfettered. This has led to the current scramble to strike some kind of deal to pass either an extension of the Patriot Act or some form of the new legislation before the Patriot Act's controversial "Section 215"--which allows for the bulk collection of phone data--expires.

DESPITE THE hype from Republicans like McConnell, the "reforms" on offer from the White House and in the USA Freedom Act are mainly toothless. The change to a "two hop" rule, for example, is meaningless when the government can easily manufacture a reason to link someone to terrorism. As the Intercept reported:

There are a number of loopholes for putting people onto the watch-lists even if reasonable suspicion cannot be met. One is clearly defined: The immediate family of suspected terrorists--their spouses, children, parents, or siblings--may be watch-listed without any suspicion that they themselves are engaged in terrorist activity. But another loophole is quite broad--"associates" who have a defined relationship with a suspected terrorist, but whose involvement in terrorist activity is not known. A third loophole is broader still--individuals with "a possible nexus" to terrorism, but for whom there is not enough "derogatory information" to meet the reasonable suspicion standard.

What do these "associations" and "possible nexus" have to look like? Essentially, being in the wrong place at the wrong time--and when it comes to cyberspace, that is an easy line to cross. According to the Washington Post:

If a target entered an online chat room, the NSA collected the words and identities of every person who posted there, regardless of subject, as well as every person who simply "lurked," reading passively what other people wrote. "1 target, 38 others on there," one analyst wrote. She collected data on them all. In other cases, the NSA designated as its target the Internet protocol, or IP, address of a computer server used by hundreds of people.

It's worth thinking about all the potential associations a person might have under such circumstances--Facebook friends or groups, phone calls to relatives, fellow students in an online class, etc. All could place someone under potential scrutiny by the NSA.

THE OTHER significant "reform" proposed to NSA spying--keeping telephone metadata stored with telecommunications companies and requiring FISA approval--is equally toothless.

As Glenn Greenwald explained, the USA Freedom Act is generally not something to be excited about:

There is a real question about whether the defeat of this bill is good, bad or irrelevant. To begin with, it sought to change only one small sliver of NSA mass surveillance (domestic bulk collection of phone records under section 215 of the Patriot Act) while leaving completely unchanged the primary means of NSA mass surveillance, which takes place under section 702 of the FISA Amendments Act, based on the lovely and quintessentially American theory that all that matters are the privacy rights of Americans (and not the 95 percent of the planet called "non-Americans").

Though Senate Republicans couldn't accept even this little bit of reform, the change to that "small sliver" of the Patriot Act is hardly a change at all. The NSA has been conspiring with the phone companies to get their massive records since it was founded in 1945, under Project SHAMROCK. This is the surveillance apparatus's favorite way of spying, and it won't be abandoned just because the law says it's supposed to (laws haven't stopped the Big Brother state before).

As for the "oversight role" of the FISA court, it has only rejected 11 government requests since its inception in 1979--and most of those were quickly revised and then approved.

In other words, legal hurdles are just a game to the NSA. In one leaked document, an NSA analyst bragged about how the agency expedited legal approvals and an immediate time extension for spying on foreign representatives during UN negotiations over sanctions on Iran:

With [various offices] pushing hard to expedite these four orders, they went from the NSA Director for signature to [the Department of Defense] for [the secretary of Defense's] signature and then to [the Department of Justice] for signature by the FISC judge in record time. All four orders were signed by the judge on Wednesday 26 May! Once the orders were received by the BLARNEY legal team, they spring into action, parsing these four orders plus another "normal" renewal in one day. Parsing five court orders in one day--a BLARNEY record!

OBAMA AND other supporters of the USA Freedom Act say the legislation is an "overhaul" of existing government surveillance, but it is far from that. Under the new rules, after initial approval from the FISA court, the NSA would be back to having easy access to our information. As the New York Times reported:

The new type of surveillance court orders envisioned by the administration would require phone companies to swiftly provide records in a technologically compatible data format, including making available, on a continuing basis, data about any new calls placed or received after the order is received, the officials said. They would also allow the government to swiftly seek related records for callers up to two phone calls, or "hops," removed from the number that has come under suspicion, even if those callers are customers of other companies.

So once an analyst gets rubber-stamp approval, they have essentially free reign to connect a suspected caller to other targets--which, as we have seen, can be stretched to include just about anybody that gets on the Internet or uses a phone.

Those who think a minor change to one part of the bulk collection system is an "overhaul" of NSA surveillance seriously underestimate what the NSA is doing. From 2004 to 2013, the NSA's annual budget increased by 53 percent to $10.8 billion. What is it doing with all that money? Here are some operations you might not know about:

-- The Equation Group, the most effective criminal hackers in the world, who have infected computer systems from Iran's nuclear power program to Russian finance;

A militarization campaign on the Internet, which involves financing hackers, destroying encryption protocols and using civilian network equipment (like your router) to hide themselves;

Targeting every drone strike on the basis of telephone metadata, allowing the government to kill civilians, but legally claim they were "militants" (because a victim allegedly used a phone associated with a suspected terrorist);

Eavesdropping on major international negotiations over energy, trade, war and sanctions, etc.;

The MYSTIC and SOMALGET programs, which collect literally all phone call metadata and content from a country. The lucky targets of both include the Bahamas, Afghanistan and formerly Iraq. Other targets of MYSTIC include Kenya, the Philippines and Mexico;

Sharing data with other agencies like the CIA, FBI and DEA;

Sharing data with Israeli intelligence.

As these activities show, the NSA is not simply or even primarily concerned with "fighting terrorism," but is involved in a wide sweep of imperialist priorities for the U.S. government. The battle against the NSA is the battle against imperialism and the ability of the U.S. to exercise control across the world. Even heroes like Snowden and Greenwald can sometimes underestimate the scope of this project when they advocate consumerist solutions like individuals using encryption programs and switching to different Internet providers.

Two years ago, the Snowden documents began opening our eyes to this monstrous problem. We need to see it for what it is, and realize that so long as the government is left to come up with the "reforms"--without a push from below--there will be no solution to the attack on our right to privacy.

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