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U.S. intelligence is too dependent on technology

by Susan Crawford

Bloomberg

The U.S. National Security Agency’s mission is to gather information about foreign terrorists and foreign powers, not to carry out wholesale domestic surveillance.

Apparently, however, its technical capabilities have outrun all existing legal constraints. It is routinely vacuuming up data about the communications of all Americans and copying information flowing from servers run by giant American online companies.

The NSA, now constructing a massive $2 billion data-storage facility just outside Salt Lake City that will presumably be capable of chewing through everything each of us says, needs to be newly reined in. After all, the most valuable intelligence is information from people everywhere, and we have access to that gold mine only if the U.S. remains a beacon to the world.

This isn’t the first time the U.S. has faced a crisis of overeager intelligence gathering. In August 1945, the predecessor of the NSA asked American telegraph companies to provide it with warrantless access to all international telegraphic traffic into and out of the U.S., even though this request was illegal. Nicknamed Project Shamrock, the outrageous effort continued for 30 years.

Other programs spied on purely domestic communications of named targets, based on the flimsy legal argument that these interceptions were incidental to foreign intelligence gathering. In 1975, a Senate committee led by Chairman Frank Church of Idaho revealed the existence of these programs.

The Church Committee’s work led to the Foreign Intelligence Surveillance Act, which lays out procedures limiting the physical and electronic surveillance and collection of “foreign intelligence information” between “foreign powers” and “agents of foreign powers.” In 2008, however, FISA was amended to provide broad authority for the interception and collection of communications involving people inside the U.S., too.

Today, the NSA can claim that as long as it isn’t “intentionally targeting” people in the U.S. it may acquire information without significant oversight. The agency apparently reasons that wholesale collection of information about calls and communications domestically doesn’t amount to “targeting” of any identifiable American. It finds further comfort in its distinction between the “content” of calls and other communications as opposed to “information about” calls, and claims that it is merely gathering “business records” subject to lesser constitutional protection.

Outside the U.S., all bets are off: It appears that the NSA routinely “mirrors” data stemming from servers run by Google Inc., Yahoo! Inc., Facebook Inc. and a host of other online companies.

In 1975, Sen. Church warned that the NSA apparatus “at any time could be turned around on the American people and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter.”

Information about calls and other electronic communications includes extraordinarily fine-grained data concerning the speaker’s location at every moment of the day; these patterns reveal intimate facts about our lives because they show networks of acquaintances and daily routines. We live online through Google and Facebook.

Now that Americans know they are being subjected to wholesale interception of their communications, we need a new Church Committee to investigate and limit the NSA’s powers.

The NSA has the capability to collect traffic from entire networks without “intentionally targeting” any particular person. Its new Utah facility indicates that the agency plans to be capable of storing raw communications data for later exploitation and analysis.

Some politicians claim that this indiscriminate inhalation of all our life-patterns is appropriate even without judicial oversight. Sen. Saxby Chambliss of Georgia, the Intelligence Committee’s ranking Republican, says that the system “has proved meritorious because we have gathered significant information on bad guys and only on bad guys over the years.” Congress appears to be acceding to the mass collection of data in the belief that this technical capability simply must be used.

The focus on capability is misguided. It shouldn’t matter that our nation can listen to everything we say and track our every movement. We are at risk of relying too much on technical gimmickry to protect ourselves.

It is, instead, our liberties that make us an appealing country. The best intelligence, human intelligence, flows from a different metric: the belief that America’s fundamental character is based on freedom and justice. If we let our rights become merely a convenience, we risk losing our appeal to those people who will help keep us safe, and hand a victory to those who would do us harm.

Susan Crawford, a contributor to Bloomberg View and a professor at the Cardozo School of Law, is the author of “Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded Age.”