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The surveillance state’s massive credibility problem

The surveillance state is simply not credible as the basic assertion of the watchers/gatherers appears to be this: “good” Americans are wholly surveilled while their privacy remains intact. Or, in some sort of paradox that makes sense only to the watchers and gatherers, we are monitored but free.

From the Washington Post comes the story of a leaker trying to do some damage repair:

The White House, the NSA and the Office of the Director of National Intelligence declined to comment on the record for this article. A senior intelligence official agreed to answer questions if not identified.

So based on the above, we likely have authorized leaks from an unidentified source. What’s comes next? The unnamed source’s plea for trust, naturally. Here’s what the leaker says:

“We have rich oversight across three branches of government. I’ve got an [inspector general] here, a fairly robust legal staff here . . . and there’s the Justice Department’s national security division,” the official said. “For those things done under court jurisdiction, the courts are intrusive in my business, appropriately so, and there are two congressional committees. It’s a belts-and-suspenders-and-Velcro approach, and inside there’s rich auditing.”

This might be the sort of “rich oversight” the IRS is subject to on non-profits, along with the associated “rich auditing.” (“Rich auditing” may in fact be code for “political targeting.” And as it turns out, the IRS is the one who does the auditing, not the public. We really don’t know much regarding the true genesis of the IRS scandal except that it’s a massive oversight failure. And ironically, those at the top often hide behind claims of “privacy.”)

Next, industry wants the top cover that only government can provide (and government is happy to do so. It makes the story sound so much better.)

When the New York Times revealed the warrantless surveillance of voice calls, in December 2005, the telephone companies got nervous. One of them, unnamed in the report, approached the NSA with a request. Rather than volunteer the data, at a price, the “provider preferred to be compelled to do so by a court order,” the report said. Other companies followed suit. The surveillance court order that recast the meaning of business records “essentially gave NSA the same authority to collect bulk telephony metadata from business records that it had” under Bush’s asserted authority alone.

So there you have it: meet the new boss, same as the old boss (except the new boss has a government approved program which is the same as the old, decider-approved program).

And what about the internet?

The NSA calls Internet metadata “digital network information.” Sophisticated analysis of those records can reveal unknown associates of known terrorism suspects. Depending on the methods applied, it can also expose medical conditions, political or religious affiliations, confidential business negotiations and extramarital affairs.

What permits the former and prevents the latter is a complex set of policies that the public is not permitted to see. “You could do analyses that give you more information, but the law and procedures don’t allow that,” a senior U.S. intelligence lawyer said.

We saw how that worked in preventing the Boston Marathon terror attacks, didn’t we? So where are we? We’re all the way back to where we started, with the Administration saying “trust me, trust the law, trust my procedures.”

The agency and its advocates maintain that its protection of that data is subject to rigorous controls and oversight by Congress and courts. For the public, it comes down to a question of unverifiable trust.

“The constraints that I operate under are much more remarkable than the powers that I enjoy,” said the senior intelligence official who declined to be named.

When asked why the NSA could not release an unclassified copy of its “minimization procedures,” which are supposed to strip accidentally collected records of their identifying details, the official suggested a reporter submit a freedom-of-information request.

So the final non sequiter is that the Administration’s leaker tells the reporter he/she’s leaking to that ‘A FOIA request should be submitted.’

After all this, if you’re going to give the leak, can’t you also include information which actually enhances your position? Why fall back on asking the leak-taker to file a FOIA request (which is far from timely and would be redacted to the point of incomprehensibility)? Good grief, man, you’re already leaking!

The failure to leak on “minimization procedures” is telling. This entire story, a gigantic “trust me” tale, is just like everything else coming out of the vast surveillance state: it comes across as disinformation and narrowly ranges between dissembling and wholly non-credible.

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