David Simon Misses the Point

The acclaimed creator of HBO’s The Wire, David Simon, is using his experience as a reporter and deep knowledge of wiretaps to set the record straight on all this ruckus over the leaks regarding the NSA and telephone records,

“Having labored as a police reporter in the days before the Patriot Act, I can assure all there has always been a stage before the wiretap, a preliminary process involving the capture, retention and analysis of raw data. It has been so for decades now in this country. The only thing new here, from a legal standpoint, is the scale on which the FBI and NSA are apparently attempting to cull anti-terrorism leads from that data.”

Yes, scale is very much the issue here. Simon himself points that out, but for some reason misses why that might be an issue for anyone. His post reeks of late-to-the-party concern-trolling. This is all old news guys! Stop acting so surprised! Weren’t any of you paying attention when the Patriot Act was originally passed in the first place?

To bring his appeal to banality home, Simon points to Baltimore in the late 1980s,

“There, city detectives once began to suspect that major traffickers were using a combination of public pay phones and digital pagers to communicate their business. And they took their suspicions to a judge and obtained court orders — not to monitor any particular suspect, but to instead cull the dialed numbers from the thousands and thousands of calls made to and from certain city pay phones.”

The difference of course being that rather than collect ALL of the records from one or a few pay phones, the government in this case is collecting ALL of the records from, presumably, ALL of the phones.

Furthermore, unlike city justices handing down these orders in city courts, the NSA surveillance goes through FISA, is top-secret, and for that very reason different not just in magnitude but in kind as well.

Simon tries to pin down the real issue as he sees it,

“The question is more fundamental: Is government accessing the data for the legitimate public safety needs of the society, or are they accessing it in ways that abuse individual liberties and violate personal privacy — and in a manner that is unsupervised.

And to that, the Guardian and those who are wailing jeremiads about this pretend-discovery of U.S. big data collection are noticeably silent.”

The Guardian is noticeably silent on this issue, as are many others, because we are in no position to judge the legitimacy of these practices. We are not, and by law cannot be, privy to the relevant “facts on the ground” on the basis of which government officials and national security “experts” tell us that these programs “strike the right balance,” and are necessary to combat terrorist threats and must necessarily be secret in order to do so.

The potential for abuse is less of an issue for me than the secrecy surrounding it, mainly because I, like most people, understand that abuse is inevitable. Let the weather stay dry enough and a fire will start. Likewise, allow individuals, or institutions, to act in secret for long enough and the abuse will come.

As Simon points out, the data is out there, it exists, and nothing we can (or are likely to) do will make it disappear. What’s more troubling, and what Simon doesn’t seem to get, or be bothered by, is the  banality of the secrecy surrounding the NSA’s activities. Over a decade after 9/11 and many people seem to be thinking, “Well of course they need to be secret about it!”

Even now, respected representatives and pundits from both major political parties seem more concerned with the fact that there was a leak, than everything we wouldn’t have known for sure without it. And at what cost?

If Simon’s (admittedly fictional) television series is any indication, the “bad guys” that the “good guys” are after aren’t stupid or backwards (am I the only one sensing a latent bigotry and/or racism from what’s implied in asserting that “of course the Jihadi terrorists don’t know we spy on them?”) They, like anyone else, adapt to conditions on the ground. If the police start culling records from pay phones, they’ll stop using pay phones, and then eventually move to pagers, and burners, and coded images, etc.

My own intuition is that anyone dumb enough to talk even semi-candidly about plans to commit terrorists acts, or to try and connect with other would-be terrorists, over the phone, through email, or via text, aren’t the ones planning the supposedly “existential” plots that these programs are meant to prevent.

If someone gets the launch codes to a nuke, or any amount of the material inside of one, I doubt they’ll be posting about it on Facebook, or their iPhone, or even one of the few remaining pay phones.

And yes, I understand that the point of aggregating data like this isn’t to find THE clue, but to piece together many clues based on some manner of pattern recognition. But if the pattern recognition used for signature strikes is any indication, we can say with absolute certainty that there will be innocent people victimized by these practices.

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36 thoughts on “David Simon Misses the Point

  1. “If Simon’s (admittedly fictional) television series is any indication, the “bad guys” that the “good guys” are after aren’t stupid or backwards. They, like anyone else, adapt to conditions on the ground. If the police start culling records from pay phones, they’ll stop using pay phones, and then eventually move to pagers, and burners, and coded images, etc.

    My own intuition is that anyone dumb enough to talk even semi-candidly about plans to commit terrorists acts, or to try and connect with other would-be terrorists over, over the phone, through email, or via text, aren’t the ones planning the supposedly “existential” plots that these programs are meant to prevent.”

    Though I understand that what you’re saying is true, I’m not sure the point you’re making here. Is it that police and intelligence agencies should then cease attempting to prevent crimes/attacks, or that we should continue to use very old avenues we know aren’t used any more to prevent criminals/enemies of the state from developing more sophisticated processes?

    I like the fact that my computer has the most up to date virus protector installed, regardless of whether or not it will eventually become obsolete.

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    • That is probably the most interesting point of all, IMHO.
      Traditionally, our justice system is set up to punish acts after they occur.
      The shift to prevention of acts is something of a game-changer.
      I would say the basis is found in conspiracy law; that concerted efforts inherently pose significant risks to society. And in that view, it’s still sort of the old way of law enforcement after the fact.

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      • How is it different than a patrol car, or a stake-out? Seems to me that all three are an effort to find people in the midst of illegal activity. In the case of the NSA surveillance, if they’re conspiring to commit a terrorist act, they have already committed a crime.

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          • Well, there are some similarities. If a cop stakes out your house, s/he can see who comes to the door, who you talk to, and who you let in, but can’t hear your actual conversations (unless you’re shouting). That’s sort of like seeing whom you’ve called but not what you talked about.

            But obviously with the stake-out, the cop is seeing inherently public information, unlike with the cell phone records.

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            • Aren’t the cell phone records public information as well? Doesn’t the fact that this information is held by the phone company, a third party with no particular interest in my privacy beyond my happiness as a customer, make it no longer private to me?

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              • That’s the uncertain part. The question is, what is Verizon allowed to do with that information? Are they allowed to sell who I call and when to other companies? Do they reserve the right to do so in fine print? Is there a reasonable expectation they would? If so, that would be a mark against the expectation of privacy. (And honestly, apart from all of this NSA business, something our government should look into, if Verizon is indeed selling such personal information to third parties.)

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                • I think this goes deep into the real territory we need, as a nation, to explore when it comes to privacy.

                  Trends in the SC suggest privacy is given up when you engage a third party; so the expectation of privacy in a phone company would not exist because the third party handles the call. But there is a lot of state law about just this kind of privacy — if it’s legal to record a call without the other party’s knowledge, for instance. So with a traditional telephone, the water’s murky; though I believe that law enforcement is required to get a warrant before tapping a phone. (Is this state, federal law? Anyone know?)

                  Health insurance is another interesting area here; HIPPA, I believe, excludes health insurance companies; they can trade your medical information. It’s your doctor who can’t trade it with another doctor, pharmaceutical salesman, or family member without your permission.

                  But what about companies like Google? They’ve, potentially, got a record of every single internet search I’ve ever done on this computer, not to mention two or three computers back. That’s some seriously valuable marketing information; Google probably knows more about me then anyone except my husband. Do I have a right to know what these companies have in their files that is specifically about me? Do they have a right to sell that information, linking it to me?

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                  • This is where I get a little bit right-wing, libertarian, or whatever. I would object to my insurance company selling my health information to Walmart. I’d have a much greater objection to it selling or giving that information to the government. It’s not even close.

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                  • Patrick, you may be right that it’s federal for ‘taping.’

                    There are layers of state law here, too. When I reported, I’d often record my interviews; it made the process quicker. But the general advice was to always be clear that the interview was being recorded, because in some (not all) states, recording you own phone conversation without the other party’s knowledge is against the law. That is, in part, what I referred to. The point being that legally requiring both parties have knowledge of a recording suggests there was/is a level of privacy involved at the state level.

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                    • And it occurs; if you’ll remember, this was part of the controversy surrounding Clinton’s impeachment; there was a lot of debate about the legality of what Linda Tripp did when she recorded her phone conversations with Lewinsky.

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                    • Oh, yes, that’s a civil matter, though, IIRC. For example, it’s illegal to record a conversation in California unless both parties are informed, or there’s no “reasonable” expectation of privacy.

                      If you’re talking about limits on what *law enforcement* can do, that’s all federal law.

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                    • I should add, I’m not married to the notion that there is a legal (or legally enforceable) expectation of privacy here. On the merits of the policy, I am conflicted. But even if they end up legally in the same category, I don’t consider the information to be “inherently” as public the same way that what I do on my front porch (or CCTV downtown) is.

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                    • See, I have a problem with CCTV as well. Well, not in the case of a private firm using CCTV as a means to defend their own property. One thing I would have a problem with is private firm giving those recordings to gummint without a court ruling.

                      That’s a big difference to me. THe state thinks it’s justified in recording individual behaviors and keeping a record of it (the length of time doesn’t really matter) on the premise that there is no right to privacy when engaging in public actions or exchanges. But that seems to me to reverse things: the mere fact that an action occurs in public doesn’t give the state the right to record or monitor it without a warrant.

                      Now, independently of the history of legislation and jurisprudence on this, I think the right to privacy (if there is such a right is still functional) acts as a constraint on the state. So the state – it seems to me – has to meet a burden to justify why it’s permitted to record public actions in which there is no prior and well established evidence of criminal activity.

                      The thinking on this seems to have gone upside down.

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                    • Still,

                      That’s a respectable position. As a policy matter, we may only slightly disagree. My position would be:

                      1. I have no problem with Bob’s Car Lot voluntarily handing over its outwardly-directed security footage to the police.

                      2. I’d have more of a problem with a law stating that Bob must turn over that evidence with or without a warrant. (A gray area would be if there was a reasonable belief that the evidence was destroyed in the time it would take to get a warrant. Not sure what I’d propose there.)

                      3. Somewhere in between #1 and #2 would be the government having its own CCTV cameras. It depends largely on the particulars.

                      However, these are statutory questions. As a matter of constitutional protections, I don’t think such cameras (at least, #1 and #3) would violate our fourth amendment rights.

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              • No, the phone records are not public information.
                I ran into this when I tried to get call logs for a line that I closed. I couldn’t do it.
                They told me the only way I could get the call logs was through a subpoena.

                There’s something of a presumption here, one that’s important to distinguish.
                Expectation of privacy is that of the one party, and not that of the other.
                The reason that the government can get their hands on those records in the first place is because caller ID already identifies the caller.

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                  • Basically stated, expectation of privacy is lost or diminished once private concerns are shared in non-privileged communication.
                    The fact that person you’re calling can see your phone number means that there is no protected privacy interest in placing the call.
                    Supposedly, though I haven’t seen this, certain exceptions would apply; such as if you’re calling your attorney. But then, I believe that instance would be the same as seeing you speak to your attorney in a hallway, as opposed to standing near for the purpose of eavesdropping.

                    I was going to e-mail this to you, but this is as good as place as any.
                    Here’s an overview from the Congressional Research Service on “Privacy Protections for Personal Information
                    Online
                    .” Very informative, though a bit outside the scope of the present discussion.

                    Here’s the index for the site, where you can find all sorts of useful (and not-so useful) information. Just because I appreciate your Linky Friday posts, even if I’m too busy reading to comment.
                    But it’s definitely a good site to bookmark for later reading.

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              • Aren’t the cell phone records public information as well?

                To some extent I’m repeating what others have said, but — no. If I ask AT&T for your call history, they’re under no obligation to give it to me. What they can and can’t share is governed by the contract you signed with them — perhaps they could make those records public (and not just shared with certain other private parties) if they chose and if that were permitted by the contract, but they have a pretty strong incentive not to do so.

                As for the difference between Verizon or AT&T having this data and the government having it, I’d think that that’s pretty obvious — Verizon and AT&T don’t have any police power at their disposal. They can search my records as much as they want, but they can’t lock me up because of what they find.

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  2. The best quote from that article is this:

    We want cake, we want to eat it, and we want to stay skinny and never puke up a thing. Of course we do.

    Seems pretty damned accurate to me.

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  3. It seems to me that some parameters are needed for this discussion. If this is true…

    Likewise, allow individuals, or institutions, to act in secret for long enough and the abuse will come.

    …are no secrets allowed? If it’s agreed that some secrecy is necessary, just how much secrecy and who gets to decide?

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    • We start by saying, “any program which monitors, intercepts, or tracks records of private citizens by the government must, in addition to all other safeguards and authorizations, track every member of Congress by the same methodology, and all records of serving members of Congress will be made public without warrant.”

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      • I don’t disagree with that concept, Patrick, but it is getting away from the question I was asking. According to the administration, for the data collecting programs being discussed, there are checks and balances on what the Executive is doing by the Judiciary and Legislature. From my read of the OP, Ethan is taking issue here with the degree of secrecy because the judicial check (the FISA court) is top secret and the legislative check (the Congressional Intelligence committees) is constrained by the oaths of secrecy they’ve made as well. Abuse is inevitable, because of the secrecy of those we’ve elected or had appointed prevents any control.

        So my question goes to what level of transparency is needed before faith with the checks on abuse is restored? It’s the public debate we should have. I think Ethan is right that a greater level of transparency is needed, but I sure don’t think some 29 year old computer contractor should get to decide what that level of transparency should be.

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        • I don’t think Patrick meant the comment to be the end-point of what constitutes adequate transparency. He meant it to be the beginning of the discussion. Personally speaking, I think it’s a good place to begin.

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