Coming up soon, the government faces an expiration data for its Section 702 surveillance powers.
Section 702 allows the NSA to gather content and communications from “upstream” providers. This means the NSA can camp out on international cables to gather every international communications rolling through (often) underwater internet cables.
Far be it from me to suggest what the NSA should or shouldn’t collect. Once you go foreign-facing, you can ignore all the rights Americans are entitled to. Leave it at that and it works. Give the FBI warrantless access? Well, holy shit, now we’re just expected to throw a tailgate party for the ends, celebrating their victory over the means.
The FBI has always abused its Section 702 access. Its abuse had been pointed out before NSA contractor Ed Snowden began telling news agencies just how often — and how egregiously — the federal government abused it surveillance powers.
The FBI is allowed access to 702 collections. But plenty of stipulations apply. The FBI must either show it’s targeting foreign entities seeking to engage in terrorist acts against the US. Or it must limit itself to “minimized” 702 that shrouds the identity of US persons. These restrictions are supposed to prevent the FBI from abusing its 702 access. But it hasn’t worked. The FBI abuses this access hundreds of thousands of times a year.
We should all care about the FBI’s surveillance abuses. But it’s only now that a bunch of garbage politicians have suddenly become concerned about this surveillance for extremely opportunistic reasons that anyone — including the FBI — seems concerned about limiting surveillance abuses. Congressional leaders want to own the libs by portraying the FBI as anti-Republican despite its extended (and opportunistically extended) investigation into “BUT HER EMAILS.”
Trump has been (mostly) peaceably deposed. But never mind the election results. The Republican party has a problem with the FBI, which not only targeted Republican operatives but also worked towards ensuring hundreds would be charged for trying to burn democracy to the ground on January 6, 2020.
The FBI is wrong. So are its most politically convenient critics.
But there are legitimate concerns about the Section 702 surveillance program. The NSA uses this to collect “upstream” communications in bulk from underwater cables and any compromised service providers willing to let the US federal government play ball. (Cue quote from Lucky Number Slevin: “Really? Do you think I’m tall enough?”)
There’s a whole land of contrast thing going on right now with the Section 702 surveillance authority. On one hand, some politicians think the power should be curbed because it might have been used to target their favorite stooges.
On the other side, there are politicians who feel the surveillance authority should be extended because (without citing facts in evidence) how else would we fight the War on Terror.
Probably everyone is wrong. The FBI’s abuses make it clear the FBI can’t be trusted. The NSA’s collections make it clear we’re asking haystacks to do our counterterrorism work for us. Meanwhile, most of the people capable of asking intelligent questions about intelligence gathering remain silent. That silence has been drowned out by people who consider cartoonist Scott Adams to be one of our nation’s greatest thinkers.
I’ll be upfront about Techdirt’s position: no blanket surveillance power should ever be granted a clean re-authorization. We have years of evidence showing the government routinely abuses these powers to bypass constitutional rights. That some might imagine we’ll only violate the rights of the worst people is not the kind of justification needed to allow the government to harvest internet communications in bulk, and — as is relevant here — allow the FBI to peruse these collections at will.
But with Section 702 on the chopping block for mostly partisan reasons, security experts are coming down on wrong side of history by advocating for more surveillance dragnets. Tim Starks of the Washington Post asked a bunch of security researchers for their opinion of Section 702. While some decided to advocate against a clean reauthorization of this power, others argued there was nothing to be worried about, despite the government’s long history of abusing this executive power.
There are rational answers to the tangled thicket of surveillance powers vis-a-vis protecting the nation. Then there are answers like these:
On the good side, we have security researchers and legal experts like Kendra Albert rationally suggesting the surveillance authority be terminated because the government has never been able to demonstrate it won’t abuse these powers. On the flip side — and given just as much WaPo page real estate — are former NSA officials, being given unearned status as impartial experts, who think the government should never really limit the NSA’s surveillance authorities.
“There will always be a tug of war between privacy and security,” wrote Jay Kaplan, chief executive and co-founder of Synack and a former National Security Agency analyst. “The reality is we haven’t suffered a major terrorist attack domestically in many years because 9/11-era policies like Section 702 are working.”
Another former NSA official, Glenn Gerstell, said that while concerns about Section 702 are understandable, Congress shouldn’t change things “piecemeal” but instead appoint a commission to examine all surveillance in the digital age.
Well, let me just clarify things: it’s only a “tug of war” because the NSA and its top personnel insist on tugging insistently. If the NSA could actually manage to engage in targeted surveillance, no one would be demanding the NSA be prevented from engaging in bulk surveillance and/or allowing the FBI to routinely violate its policies and the Constitution by warrantlessly accessing US persons’ communications.
And if you think Congress will fix things on the back end with legislation, you obviously (or deliberately) ignore how Congress actually works: it’s the path of least resistance. If Congress can’t present a unified front against a clean reauthorization, it will pass a clean reauthorization because it’s much, much easier than opening the subject up to debate multiple times.
Meanwhile, there’s the middle ground. Those in support of this imaginary common ground think the NSA should get what it wants (in limits!) but presupposes the current government is willing to inflict those limits on the FBI and NSA. Psst! No one wants this, at least not anyone in a legislative position. Offended Republicans want the program dumped because they mistakenly believe it was used to target one of their own. Others want the program dumped for less partisan reasons. The middle-of-the-road experts seem to believe a clean re-auth could be tempered by codification of limits currently self-imposed by the FBI and DOJ.
Trust me, neither of those entities are willing to sign off on codified restrictions. Pretending politically convenient access restrictions will ever become federal law is as stupid as believing anyone in Congress really, truly wishes to limit government power.
It seems clear hardly anyone inside or outside the government wants to see this fixed. Those with the most power are more than willing to send a shrug and a middle finger to Americans affected by the US government’s ongoing abuse of so-called “incidental” collections. You get what you get. The nation can only be secured with routine violations. And if you don’t like it, you’re always free to exit the country and live somewhere where no rights are respected at all.
And it’s one thing when the government makes this insinuation. It’s quite another when beneficiaries of constitutional rights suggest continuous rights violations are the best thing for this country and its residents.
