The Internet: Watching government surveillance

After the 9/11 attacks, America’s citizenry and its intelligence community developed a fear of what might follow. To compound citizens’ fears, the crumbling to earth of the Twin Towers also crumbled many peoples’ faith in America’s intelligence community. Critics claim Uncle Sam’s intelligence agencies failed to do their jobs. In response, the NSA, FBI, DIA, and CIA claim if they only had access to more data, the Twin Towers would still be standing.

The PATRIOT Act

More data, more information, became the mantra for the solution to the terrorist problem. One result was the passing of the USA PATRIOT Act, signed into law by George W. Bush on Oct. 26, 2001. NSA, acting on the laws of the PATRIOT Act, put in place a surveillance system that captured “every possible scrap of information,” what General Keith Alexander, the agency’s former head, called “the whole haystack.”

These acts and rulings empowered the government to direct any American company or individual to disclose records of national security interests (as determined by FISA, the Foreign Intelligence Surveillance court). In addition, NSA has used these tools as the basis in its metadata gathering programs for the FBI’s law enforcement actions.

The New America Foundation, a liberal to middle-of-the-road think tank, performed an analysis of the methods used to detect terror suspects. Here is a synopsis of this study, which can be found at http://natsec.newamerica.net/nsa/analysis:

*The Foundation asserts the NSA’s bulk surveillance of phone and email communications records is having no effect on keeping Americans significantly safer. The organization states NSA’s claims of the program being effective are “overblown and even misleading.” Gen. Keith B. Alexander eventually conceded that the program had uncovered one or two plots.

*An analysis of 225 individuals charged in the United States with an act of terrorism since 9/11 reveals that traditional investigative methods (use of informants, tips from local communities, targeted intelligence operations) provided the foot in the door that led to these indictments.

*The contribution of NSA’s metadata surveillance programs to these cases was at most 1.8 percent of these cases.

Taking a look on the other side of the fence, do these admittedly small figures reflect an ineffective program? Was the 1.8 percent of the people in the sample planning on leveling the White House? It is not just the quantity of the traps that matters, it is the quality of what was trapped that is more important.

The men and women in the American intelligence community have the best interests of America at heart. However, the very nature of their jobs can lead them to over-react. (I can attest to this tendency during my time as a U.S. Navy officer assigned to the Defense Intelligence Agency.) It is human nature. The danger of this situation is that secret over-reach tends to build on itself because it lacks restraints. (Congressional oversight committees have been, charitably speaking, lax in their oversight.)

USA Freedom Act

Due to concern and complaints about the PATRIOT act (and its illegal misuse), Congress passed the USA Freedom Act in 2015. This act establishes a new process for the FBI and NSA to follow in obtaining permission from the FISA court for examining records gathered by American wireless and wire-based telephone companies (and by inference, Internet traffic as well).

In contrast to the PATRIOT Act, which led to warrantless searches of records that were stored at NSA, the USA Freedom Act requires the FBI and NSA to do their probing on a case-by-case basis. In addition, these records will no longer be stored at NSA. (What happens to the massive NSA Utah facility?) They will be stored at companies’ sites. The act permits “the government to require the prompt production of such records,” and to compensate any party for expenses incurred for producing the records.

As with the PATRIOT Act, the USA Freedom Act’s intent is to obtain foreign information “to protect against international terrorism or clandestine activities.” As well, the collection and examination of user content in traffic is not allowed; seemingly, only metadata. However, the FBI is still allowed to submit an application to the FISA court to obtain “tangible things” such as business records, books, records, “and other items.” The “and other items” phrase is broad enough to include Internet traffic and user content.

More Openness

A substantial part of the Freedom Act is devoted to the process of obtaining and examining information to be subject to less secrecy; that is, more openness to Congress.

In addition, the act requires the Director of National Intelligence to make available publicly the total number of searches conducted during a preceding 12-month period. As well, an Internet website must be created that reflects the number of FISA court requests denied (or approved) during this time.

This approach, using America’s legacy of court-approved “wire tapping,” is a healthy change from the PATRIOT Act. But we should keep in mind that after 9/11, America’s citizens and its intelligence community were caught-up in a vortex of uncertainty and alarm. Only in hindsight do we have foresight.

The Cybersecurity Information Sharing Act

The Cybersecurity Information Sharing Act (CISA), passed by the Senate on Oct. 28, 2015, is intended to facilitate the sharing of information about Internet security threats between U.S. government agencies (national, state, and local) and private enterprise. As of this writing, it is too soon to know the consequences of this law. The details have not yet been filled in.

Also, it remains to be seen how this law will affect the USA Freedom Act, but this writer believes it might compromise aspects of the “Freedom” law. That said, CISA does require the stripping of personal information when data are exchanged between various parties. Metadata is the focus of attention.

Privacy advocates worry that the act does not establish how the information will be controlled. Proponents of the act claim that CISA will help prevent corporate data breaches by allowing companies to share cybersecurity threat data with security agencies such as the Department of Homeland Security, the FBI, and NSA. The Wall Street Journal claims the law will combat cyber threats.

The interested reader can follow the maturation and implementation of both laws on the Internet. I will post updates to this information at Blog.UylessBlack.com. Scroll down to Series #26 and click on the link, “Epilogues to The Internet and Society.” (Thus far, there are no updates to post.)

The U.S. government surveillance operations are controversial, often raising political blue or red flags. U.S. businesses stand to lose billions of dollars in revenue because other countries (even the EU) are passing laws forbidding their citizens’ data to be sent across country borders. The Internet may be divided in fiefdoms as countries are forced to balkanize their parts of the Internet. We return to this subject in the last article of this series.

Uyless Black is an award-winning author who has written 40 books on a variety of subjects. His latest book is titled “2084 and Beyond,” a work on the origins and consequences of human aggression. He resides in Coeur d’Alene.