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Seven Crucial Questions That ’60 Minutes’ Failed to Ask the NSA | Motherboard

Seven Crucial Questions That ’60 Minutes’ Failed to Ask the NSA | Motherboard.

NSA Director Gen. Keith Alexander during 60 Minutes’ look at the agency

One of the most difficult questions facing journalists is how one stays objective when given deep access. When a subject opens his or her doors and rolls out the full hospitality routine, it’s easy to feel sympathetic or even beholden to a source, which can color reporting. It’s human nature, but it’s easily countered: You make sure you’ve talked to a variety of outside sources, and you ask questions that don’t simply take a subject’s claims at face value, which doesn’t necessarily mean being combative. It’s just the job.

Last night, while trumpeting its unprecedented access to the NSA, 60 Minutes did none of those things. In a segment that discussed the NSA’s activities without interviewing a single outside source, 60 Minutes largely defaulted to lobbing softball questions to NSA Director Keith Alexander—who naturally denied the veracity of the wealth of reporting from this year on documents leaked by Edward Snowden—while taking a breathless tour of the NSA’s facilities, watching an NSA whiz kid solve a Rubik’s cube, and calling Snowden a weirdo who could help China blow up the US economy.

The correspondent for the segment, John Miller, was touted by CBS as being the “ultimate insider,” likely due to the fact that he was formerly the FBI’s national spokesman, after which he worked in the Office of the Director of National Intelligence. While that surely means he’s well-informed and well-connected, it also means he’s more likely to be sympathetic to Alexander’s side of the story, which led to exchanges where Miller asked questions designed to allow Alexander to refute previous reporting from the likes of the Guardian, Washington Post, and New York Times, without any follow up.

60 Minutes indeed did get incredible access to the NSA, which was cool to see, but which made its empty questioning all the more disappointing. It’s also worrisome: 60 Minutes has huge reach, and for any viewer who hasn’t been following the NSA saga obsessively, last night’s segment made it sound like some sketchy guy named Snowden ran off to Russia with a bunch of documents that will now hamper the NSA’s mission to fight terrorism and China, while privacy and legal concerns were swept under the rug. So, in the interest of setting the record straight, here are seven questions that 60 Minutes should have asked:

How are FISA restrictions interpreted by the NSA?

Under Section 215 of the Patriot Act, the NSA may collect phone call metadata in bulk as long as it’s proven relevant to a specific investigation and “adequate minimization procedures” are taken. These requirements, and the resulting approval of metadata collection, is overseen by the Foreign Intelligence Surveillance Court, a secret court that, after being accused of being a rubber stamp, has called out the NSA for willfully misleading the court about the scope of the agency’s activities. The end result? The NSA collects millions upon millions of phone records every year.

How does the NSA reconcile this descrepancy? Miller tried to ask:

John Miller: A judge in the FISA court, which is the court that secretly hears the NSA cases and approves or disapproves your requests. Said the NSA systematically transgressed both its own court-appointed limits in bulk Internet data collection programs.

Gen. Keith Alexander: There was nobody willfully or knowingly trying to break the law.

That’s a pretty weak denial, one which Miller didn’t follow up on. It’s also not true: The NSA has knowingly disciplined employees for illegally spying on Americans. More importantly, how does the NSA argue that collecting bulk metadata fits under “minimization” procedures? Aside from saying data has to be stored in bulk to be effective—which is hardly an argument that anything is minimized—Alexander didn’t have to say.

The first half of the segment

What can the agency actually do with metadata?

Alexander justified bulk data collection by saying it’s just anonymous data on phone numbers, call duration, and time; in other words, he says it should be of no concern to regular Americans because it doesn’t really say much. But the NSA stores five years worth of call data, which would be a strange choice if it was worthless. What can the agency actually do with it?

Miller didn’t really ask, but thankfully the incredible value of metadata has been explained before. On its own, it can reveal a lot about a person’s personal life, and combined with the billions of social interactions the NSA collects every day, can paint a pretty clear portrait of who a person interacts with and what their interests are. But Alexander played metadata off like it’s essentially worthless, an argument Miller was too ready to accept.

What do privacy advocates say about the NSA?

It’s pretty clear that 60 Minutes traded access to the NSA’s facilities for a puff piece on what it does, much as it did with Amazon’s drone announcement last week. But as much as the Amazon segment reeked of straight-up PR, doing a soft segment is far worse when it concerns the most important politics story of the year. Not only did 60 Minutes manage to avoid interviewing a single outside source in the segment, Miller never once mentions the series of lawsuits from big-time advocacy groups that have been levied against the NSA. Ignoring those makes it even harder for viewers to understand that the NSA is even doing anything controversial, which is a fundamental failure of the piece.

Why did Snowden have such incredible access?

In the piece, Snowden’s trove of some 1.7 million documents is mentioned as having severe national security ramifications, especially with regards to the NSA’s capabilites and interests in sensitive countries, like China or Iran. That’s not a particularly surprising claim, but how did one man get such access?

The 60 Minutes segment doesn’t fully address that point. According to Rick Ledgett, the man doing damage assessment on the leaks, “the people who control that, the access to those machines, are called system administrators and they have passwords that give them the ability to go around those–security measures and that’s what Snowden did.”

The segment also tries to paint Snowden as a weirdo, such as this curious exchange:

At home, they discovered Snowden had some strange habits.

Rick Ledgett: He would work on the computer with a hood that covered the computer screen and covered his head and shoulders, so that he could work and his girlfriend couldn’t see what he was doing.

John Miller: That’s pretty strange, sitting at your computer kind of covered by a sheet over your head and the screen?

Rick Ledgett: Agreed.

That 60 Minutes is investigating Snowden’s personality is fine—he’s an important figure, after all—but makes you wonder. How does Snowden—an outside contractor who had been working with the NSA for mere months, and one who apparently acted strangely enough to comment on—get access to so many documents? Is the NSA changing procedures? The answer isn’t clear.

What is the NSA’s relationship with the US tech industry?

From the beginning of the Snowden-NSA saga, US tech companies have been implicated, knowingly or not. But whether or not the companies had any involvement, the revelation that the NSA has incredible access to US tech companies, by court order or not, has huge ramifications for the US tech sector.

The 60 Minutes segment notes that replacing all the computers Snowden touched cost tens of millions of dollars, but makes no mention of reports suggesting the NSA’s activities will cost the US tech sector tens of billions. While Miller notes that the CEOs of eight major tech companies called for new limits on the NSA, he doesn’t ask Alexander about it. Instead, Miller sets up Alexander to refute prior media reports.

For example, there was this exchange regarding the Post’s blockbuster report about the NSA accessing Google and Yahoo data centers, which caused uproar from both companies:

John Miller: One of the Snowden leaks involved the concept that NSA had tunneled into the foreign data centers of major U.S. Internet providers. Did the leak describe it the right way?

Gen. Keith Alexander: No, that’s not correct. We do target terrorist communications. And terrorists use communications from Google, from Yahoo, and from other service providers. So our objective is to collect those communications no matter where they are.

But we’re not going into a facility or targeting Google as an entity or Yahoo as an entity. But we will collect those communications of terrorists that flow on that network.

And that was that. If Miller asked any follow-up questions, it never made the final cut.

Part two of the segment

What is the US’s approach to cyberwar?

At one point, the segment veered off into a discussion of state-sponsored cyberattacks, and 60 Minutes repeats claims from the NSA that it stopped an attack from China called the BIOS Plot. Debora Plunkett, the NSA’s director of cyber defense, explained that by bricking computers, China could have hacked its way into economic destruction:

Debora Plunkett: That’s right. Think about the impact of that across the entire globe. It could literally take down the U.S. economy.

John Miller: I don’t mean to be flip about this. But it has a kind of a little Dr. Evil quality– to it that, “I’m going to develop a program that can destroy every computer in the world.” It sounds almost unbelievable.

Debora Plunkett: Don’t be fooled. There are absolutely nation states who have the capability and the intentions to do just that.

China is indeed building a hacker army, but what about the US? The section about China’s hacking capabilities seems designed to help defend the NSA’s activities, but it’s also important to note that the US has offensive capabilites as well. Have we already forgotten about Stuxnet? Asking about the NSA’s own approaches, rather than scare-mongering, would have been far more valuable.

What’s the future look like?

Alexander is expected to retire soon, which Miller doesn’t ask about. Miller does ask whether or not Alexander tried to resign, which the Wall Street Journal previously reported. Alexander confirmed that he tried, saying that “Well, I offered to resign. And they said, ‘We don’t see a reason that you should resign. We haven’t found anybody there doing anything wrong. In fact, this could have happened to anybody in the community.'”

It’s fairly shocking in its own right that the Director of National Intelligence and Secretary of Defense, to whom Alexander presumably sent his resignation, said that such a massive leak could have happened to anyone. Is the sanctity of secret intelligence documents so fragile?

The 60 Minutes segment goes on to explain that the NSA regularly gives Top Secret clearances to high school kids, which seems a strange choice at the very least. But beyond that, what will the NSA change? Miller doesn’t ask, instead asking about Alexander’s potential loss of power (which wouldn’t matter if he retires), and to which Alexander responds with an aside about terrorism:

John Miller: After all of this controversy, you could come out of this with less authority than you went into it. What does that say?

Gen. Keith Alexander: Well, my concern on that is specially what’s going on in the Middle East, what you see going on in Syria, what we see going on– Egypt, Libya, Iraq, it’s much more unstable, the probability that a terrorist attack will occur is going up. And this is precisely the time that we should not step back from the tools that we’ve given our analysts to detect these types of attacks.

There are plenty of other questions the 60 Minutes segment could have asked. Two big ones are whether or not the PRISM program can collect as much as Snowden’s docs say it does, as well as following up on Alexander’s claim that the NSA didn’t have metadata collection capabilities before 9/11, which whistleblowers say is false. (Feel free to add more in the comments.)

But I think the above seven are the most damning to 60 Minutes’ report, because by not asking them, the segment glosses over the key aspects of the NSA controversy. For an average viewer watching last night, what was the takeaway? That some computer weirdo named Snowden stole documents that could help China destroy the US with computers, and that everything you may have heard about the NSA’s spying in newspapers isn’t exactly true.

It’s no surprise that a guy who was once the FBI’s PR man would be sympathetic towards the national security world, but by presenting such a soft and one-sided report—literally one-sided, as there wasn’t a single outside source, which is appallingly shoddy journalism for such a contentious story—60 Minutes did its viewers a disservice.

 

Federal Judge Strikes Down NSA’s Bulk Metadata Program: “I Cannot Imagine a More ‘Indiscriminate’ and ‘Arbitrary Invasion’ Than This Systematic and High-Tech Collection and Retention of Personal Data On Virtually Every Single Citizen” Washington’s Blog

Federal Judge Strikes Down NSA’s Bulk Metadata Program: “I Cannot Imagine a More ‘Indiscriminate’ and ‘Arbitrary Invasion’ Than This Systematic and High-Tech Collection and Retention of Personal Data On Virtually Every Single Citizen” Washington’s Blog.

“The Government Does Not Cite A Single Instance In Which Analysis Of The NSA’s Bulk Metadata Collection Actually Stopped An Imminent Attack”

A federal court has just struck down the NSA’s bulk metadata spying program today.

The court notes:

The Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.

***

There is no indication that these revelations were immediately useful or that they prevented an impending attack.

***

I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.

***

The Fourth Amendment typically requires “a neutral and detached authority be interposed between the police and the public,” and it is offended by “general warrants” and laws that allow searches to be conducted “indiscriminately and without regard to their connection with [a] crime under investigation.”

I cannot imagine a more “indiscriminate” and “arbitrary invasion” than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on “that degree of privacy” that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware “the abridgement of freedom of the people by gradual and silent encroachments by those in power,” would be aghast.

The judge is right:

 

Judge Rules NSA’s “Indiscriminate & Arbitrary” Invasion Of Privacy Likely Unconstitutional | Zero Hedge

Judge Rules NSA’s “Indiscriminate & Arbitrary” Invasion Of Privacy Likely Unconstitutional | Zero Hedge.

A federal judge ruled Monday that the National Security Agency program which collects information on nearly all telephone calls made to, from or within the United States is likely to be unconstitutional. As Politico reports, Judge Richard Leon blasted, “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval.” This is the first significant legal setback for the NSA’s surveillance program since Edward Snowden exposed it.

Via Politico,

U.S. District Court Judge Richard Leon found that the program appears to run afoul of the Fourth Amendment prohibition on unreasonable searches and seizures. He also said the Justice Department had failed to demonstrate that collecting the so-called metadata had helped to head off terrorist attacks.

 

 

Plaintiffs have a very significant expectation of privacy in an aggregated collection of their telephone metadata covering the last five years, and the NSA’s Bulk Telephony Metadata Program significantly intrudes on that expectation,” wrote Leon, an appointee of President George W. Bush. “I have significant doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.”

 

 

Leon’s ruling is the first significant legal setback for the NSA’s surveillance program since it was disclosed in June in news stories based on leaks from former NSA contractor Edward Snowden. The metadata program has been approved repeatedly by numerous judges on the Foreign Intelligence Surveillance Court and at least one judge sitting in a criminal case.

The Blog of Legal Times adds:

A federal magistrate judge in Washington today released a 157-page report detailing evidence and testimony in a dispute over the handling of evidence from mass arrests of protesters in downtown Washington in 2002.

 

U.S. District Magistrate Judge John Facciola did not, however, offer his conclusions on the central issue of whether city or police officials mishandled, concealed or destroyed evidence.

 

Facciola, who was appointed by U.S. District Judge Emmet Sullivan to probe the evidence-related allegations as a special master, wrote that he wasn’t clear on the scope of his authority at this point.

 

“As I am reluctant to speculate as to Judge Sullivan’s intentions, particularly when the sanctions sought are so severe,” Facciola wrote.

 

The underlying litigation involves mass arrests by the Metropolitan Police Department during protests around Pershing Park in 2002. In recent years, the arrest litigation has been put on hold as lawyers for the plaintiffs and the city fought over allegations that officials mishandled evidence and withheld information from the court.

 

Facciola’s report didn’t include a time frame for when Sullivan might decide how the case should proceed. “I will instead issue the following findings of fact but defer issuing conclusions of law until Judge Sullivan indicates the nature of the authority he wishes me to exercise,” Facciola wrote, “assuming he intends me to have additional responsibilities once he reviews my findings.”

Full judge’s report:

 

 

Government Looking For Witches Will Find Them

Government Looking For Witches Will Find Them. (FULL ARTICLE)

While the nation’s political class has been fixated on a potential government shutdown in Washington this week, the NSA has continued to spy on all Americans and by its ambiguity and shrewd silence seems to be acknowledging slowly that the scope of its spying is truly breathtaking.

The Obama administration is of the view that the NSA can spy on anyone anywhere. The president believes that federal statutes enable the secret FISA court to authorize the NSA to capture any information it desires about any persons without identifying the persons and without a showing of probable cause of criminal behavior on the part of the persons to be spied upon. This is the same mindset that the British government had with respect to the colonists. It, too, believed that British law permitted a judge in secret in Britain to issue general warrants to be executed in the colonies at the whim of British agents.

General warrants do not state the name of the place to be searched or the person or thing to be seized, and they do not have the necessity of individualized probable cause as their linchpin. They simply authorize the bearer to search wherever he wishes for whatever he wants. General warrants were universally condemned by colonial leaders across the ideological spectrum — from those as radical as Sam Adams to those as establishment as George Washington, and from those as individualistic as Thomas Jefferson to those as big-government as Alexander Hamilton. We know from the literature of the times that the whole purpose of the Fourth Amendment — with its requirements of individualized probable cause and specifically identifying the target — is to prohibit general warrants…

 

NSA Tapping Internet Backbone, and Spying On (and Graphing) Our Social Networks | Washington’s Blog

NSA Tapping Internet Backbone, and Spying On (and Graphing) Our Social Networks | Washington’s Blog.

 

Microsoft and Google to sue over US surveillance requests | Law | The Guardian

Microsoft and Google to sue over US surveillance requests | Law | The Guardian.

 

NSA Admits It “Acquires” Your Internet Data From These Redacted Internet Service Providers | Zero Hedge

NSA Admits It “Acquires” Your Internet Data From These Redacted Internet Service Providers | Zero Hedge.

 

White House urges Congress to reject moves to curb NSA surveillance | World news | guardian.co.uk

White House urges Congress to reject moves to curb NSA surveillance | World news | guardian.co.uk.

 

Secret court okays continued US surveillance – Americas – Al Jazeera English

Secret court okays continued US surveillance – Americas – Al Jazeera English.

 

The Fact that Mass Surveillance Doesn’t Keep Us Safe Goes Mainstream-Washington’s Blog

Washington’s Blog.

 

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