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Common Sense on Surveillance

Our security demands progress, not politics

By Michael Tanji | October 18, 2007

It was recently reported that the Bush administration would be turning over documents related to its terrorist surveillance program to members of the Senate, who are currently attempting to craft a legislative solution to the electronic surveillance dilemma. As a quick reminder; current law throws a myriad of serious roadblocks in front of our intelligence agencies when they try to monitor the communications of terrorists.

Civil libertarians decry almost any attempt to gain access to domestic communications systems. They wonder what is to stop the government from turning its intelligence capabilities away from terrorists and towards law-abiding citizens. Functionally speaking the answer is nothing, though the real defense against a true “domestic” surveillance program will be addressed later.

The problems here are numerous and at times complicated. The physical location of those we are attempting to target is not an issue; the fact that their communications are likely to transit a network in the US is. Whether it is a phone call or email, odds are that it passes through a network in the US because we serve as one of the world’s largest communications hubs. By US law, intercepting communications on a US network requires a warrant. An additional complicating factor is that one person on the end of the conversation might be a “US Person” (in short but not exclusively, citizens and legal resident aliens): there are special rules that must be followed before a US person can be monitored.

Whether you grasp the legal or technical complexities here or not, all you really need to understand is that FISA was passed in 1978; pre-Internet, pre-mobile phone, pre-instant messaging and back when you actually “dialed” numbers. In a word, current law is archaic.

There are multiple, straight-forward ways to address these problems. Through a mix of legal, technical and political approaches we can effectively monitor terrorists and others who would do us harm as well as protect the privacy of innocents.

First, craft surveillance legislation to focus on what we should be doing to targets, not how we should be viewing systems. In cyberspace physical location means nothing and the law should reflect that. That privacy is in danger because our conversation with Aunt Alice is co-mingled over the wires with communications between al-Qaeda operatives is a red herring.

Second, build a robust and rigorously peer-reviewed data minimization and anonymization scheme. The procedures for sharing “domestic” signals intercepts with other elements of the intelligence community make them useless for analytical work. They are worse than if we collected nothing because an obtuse protection mechanism ensures you will never know if you have a piece of groundbreaking information in your hands. A system that assigns a unique and arbitrary designator to those actually or potentially protected by surveillance law allows important intelligence work to continue without infringing upon anyone’s rights.

Third, allow the Government Accountability Office to act as Congress’s investigative arm inside the intelligence community. Such a move would have implications beyond just FISA and surveillance cases, but in this particular situation it adds a much needed and widely trusted watcher-of-watchers to ensure strict adherence to new law and policy.

Finally, those on both sides of this issue need to discuss these issues openly, honestly, and without the misleading and often insulting hyperbole that has been exchanged to date. No one who understands agencies like the NSA and its people would admit in a moment of frankness that it was a nest of spooks hell-bent on “spying on Americans,” yet that is just what those attempting to monitor terrorist communications are accused of doing. The idea that the current administration has put us back on a course to the bad old days of COINTELPRO and CHAOS neglect the fact that once such systems were in place, any administration could use them. Additionally, unlike the 70s, we seem to get a Pentagon Papers-level leak revealed in the press several times a year. The idea that an actual domestic spying program would not be subject to the antiseptic of sunlight within days of implementation is simply absurd.

This is an issue that needs to be addressed immediately. Few reject outright the general concepts of what needs to be done; both sides need to stop talking past one another and find some common ground to stand on. The government is, after all, the home of the 70% solution. The longer we dawdle the greater the threat we all face – party immaterial – from those who would use technology and our own laws against us.

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