Homeland Security Watch

News and analysis of critical issues in homeland security

November 6, 2014

Klayman appeal

Filed under: Intelligence and Info-Sharing,Legal Issues,Privacy and Security — by Philip J. Palin on November 6, 2014

Tuesday oral arguments were heard by the Federal Appeals Court for the DC circuit in a key case related to NSA mass surveillance.

Last December, finding for the plaintiffs in Klayman v Obama, Federal District Judge Richard Leon wrote,

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 be beware “the abridgement of freedom of the people by gradual and silent encroachments by those in power,” would be aghast. (Prior attention by HLSWatch)

Judge Leon stayed his injunction of further surveillance of citizen phone records pending appellate review, given the national security implications and, what the Judge called, “novel” privacy implications of the case.

Josh Gerstein, writing in Politico of Tuesday’s proceedings, perceives:

During oral arguments Tuesday, three judges of the U.S. Court of Appeals for the D.C. Circuit seemed skeptical in various ways about the lawsuits that led to U.S. District Court Judge Richard Leon’s ruling last December that the NSA’s surveillance was likely unconstitutional.

Reporting for The Hill, Julie Hattem seems to agree:

Critics of the National Security Agency’s most embattled program harshly condemned the spying in a top appeals court on Tuesday. Judges, however, seemed largely skeptical of their claims that the spy agency’s bulk collection of Americans’ phone records was unconstitutional. Instead, they seemed to express a desire to reverse a lower court ruling nearly one year ago that called the NSA program “almost Orwellian.”

An audio recording of Tuesday’s Oral Arguments is available here.  I have not yet seen a transcript. Writing at the always informative Lawfare blog, Wells Bennett provides his own summary of the arguments.

Mr. Bennett is less inclined than the reporters quoted above to hear a predisposition in the three judge panel’s line of inquiry.  Bennett notes, “the day’s questioning was even-handed and vigorous, and exposed weaknesses in arguments advanced by both the government and plaintiffs alike…”

Before the end of the year appellate decisions are expected in three cases emerging from the Snowden revelations: Klayman v Obama, ACLU v Clapper, and Smith v  Obama.  If all meet with similar appellate findings, then no Supreme Court review is likely.  If they disagree — and depending on the nature of the disagreement — the Supreme Court is more likely to take action to resolve.

Late last year, just before the Klayman decision, Edward Snowden commented to the Washington Post, “For me, in terms of personal satisfaction, the mission’s already accomplished,” he said. “I already won. As soon as the journalists were able to work, everything that I had been trying to do was validated. “

A buddy in the intelligence community insists, “Snowden has made all of us less secure.”  A long-time lawyer complains of domestic surveillance, “It’s like an ulcer.  Maybe it originated with external stress, but now it’s eating us from the inside.”

What’s the right balance?  The courts are being asked to decide.

September 20, 2014

New intelligence strategy

Filed under: Intelligence and Info-Sharing — by Philip J. Palin on September 20, 2014

Just to be sure you don’t miss it, here’s the 2014 Intelligence Strategy — perhaps the new National Security Strategy will emerge next.  I was having difficulty downloading this when it was first released.  Maybe you too?  In any case, the connection remains slow (at least for me) but you can get it here:  http://www.dni.gov/files/documents/2014_NIS_Publication.pdf

This is mostly a high-level “corporate” document regarding how the IC will serve its customers. It outlines how intelligence will be prioritized, it is not an intelligence product. But in terms of the environment for these functions, the strategy notes:

Violent extremist groups and transnational criminal networks threaten U.S. security and challenge the U.S. both in the homeland and abroad. Al-Qa‘ida, its affiliates, and adherents, continue to plot against U.S. and Western interests, and seek to use weapons of mass destruction if possible. The actions of transnational criminal organizations have the potential to corrupt and destabilize governments, markets, and entire geographic regions. The IC will increasingly serve homeland security as well as military and foreign policy objectives.

There is a stated commitment to lawfulness: “We support and defend the Constitution, and comply with the laws of the United States, ensuring that we carry out our mission in a manner that respects privacy, civil liberties, and human rights obligations.”

The strategy warns, “The U.S. will continue to face threats of  unauthorized disclosures from insiders and others that compromise intelligence sources, methods, capabilities, and activities, and may impact international and domestic political dynamics. These disclosures can degrade our ability to conduct intelligence missions and damage our national security.”

Some have suggested this threat (Wikileaks, Snowden, et al) is a potential game-changer for how intelligence operations can be conducted in the future. This strategy does not address that possibility.

September 18, 2014

Johnson testimony: Worldwide threats to the homeland

Yesterday — Constitution Day BTW — the Secretary of Homeland Security testified before the House Committee on Homeland Security.  He was joined in giving testimony by FBI Director James Comey and director of the National Counterterrorism Center, Matt Olson. (Video and transcripts here)

Below is most of Secretary Johnson’s opening statement.  I hear a domestically-focused harmonic to the main counterterrorism melody performed by the President at MacDill (see prior post, immediately above).

Counterterrorism is the cornerstone of the DHS mission. And thirteen years after 9/11, it’s still a dangerous world. There’s still a terrorist threat to our homeland.

Today the terrorist threat is different from what it was in 2001. It is more decentralized and more complex. Not only is there core al Qaeda in Afghanistan and Pakistan, there is al Qaeda in the Arabian Peninsula – which is still active in its efforts to attack the homeland – al Qaeda in the Islamic Maghreb, al Shabaab in Somalia, the al Nusrah Front in Syria, and the newest affiliate, al Qaeda in the Indian subcontinent. There are groups like Boko Haram in Nigeria, which are not official affiliates of al Qaeda, but share its extremist ideology.

The Islamic State of Iraq and the Levant, or ISIL, previously known as al Qaeda in Iraq, is now vying to be the preeminent terrorist organization on the world’s stage. At present, we have no credible information that ISIL is planning to attack the homeland of the United States.

But that is not, by any means, the end of the story.

ISIL is an extremely dangerous organization. It has the elements of both a terrorist organization and an insurgent army. It kills innocent civilians, and has seized large amounts of territory in Iraq and Syria, which it can utilize for safe haven, training, command and control, and from which it can launch attacks. It engages in 30-40 attacks per month, has more than 20,000 fighters, and takes in as much as a million dollars a day from illicit oil sales, ransom payments, and other illicit activities. Its public messaging and social media are as slick and as effective as any I’ve ever seen from a terrorist organization.

Though we know of no credible information that ISIL is planning to attack the homeland at present, we know that ISIL is prepared to kill innocent Americans they encounter because they are Americans – in a public and depraved manner. We know ISIL views the United States as an enemy, and we know that ISIL’s leaders have themselves said they will soon be in “direct confrontation” with the United States…

From the homeland security perspective, here is what we are doing:

First, to address the threats generally emanating from terrorist groups overseas, we have in recent weeks enhanced aviation security. Much of the terrorist threat continues to center around aviation security. In early July, I directed enhanced screening at 18 overseas airports with direct flights to the U.S. Several weeks later, we added six more airports to the list. Three weeks ago we added another airport, and additional screening of carry-on luggage. The United Kingdom and other countries have followed with similar enhancements to their aviation security. We continually evaluate whether more is necessary, without unnecessarily burdening the traveling public.

Longer term, as this committee has heard me say before, we are pursuing “pre-clearance” at overseas airports with flights to the U.S. This means inspection by a U.S. Customs and Border Protection officer and enhanced aviation security before a passenger gets on the plane to the U.S. We now have pre-clearance at airports in Ireland, the UAE, Canada and the Caribbean. I regard it as a homeland security imperative to build more. To use a football metaphor, I’d much rather defend our end-zone from the 50-yard line than our 1-yard line. I want to take every opportunity we have to expand homeland security beyond our borders.

Second, the Department of Homeland Security, the FBI, NCTC and other intelligence agencies are making enhanced and concerted efforts to track Syrian foreign fighters who come from or seek to enter this country. The reality is that more than 15,000 foreign fighters have traveled to Syria over the last three years, including approximately two thousand Westerners. We estimate that more than 100 Americans have traveled or attempted to travel to Syria to join the fight there one way or another. We are concerned that not only may these foreign fighters join ISIL or other violent extremist groups in Syria, they may also be recruited by these violent extremist groups to leave Syria and conduct external attacks. The FBI has arrested a number of individuals who have tried to travel from the U.S. to Syria to support terrorist activities there.

Third, we are working with European and other governments to build better information sharing to track Syrian foreign fighters. Whenever I get together with my European counterparts, this topic is almost always item number one on the agenda. The importance of this issue is also reflected by the fact it will be a singular topic of discussion at a U.N. Security Council summit that the President will chair in two weeks. In the history of the U.N., this is only the second time a U.S. President has personally chaired a Security Council summit.

We are increasing efforts to track those who enter and leave Syria, and may later seek to travel to the United States from a country for which the United States does not require a visa from its citizens. There are in fact a number of Visa Waiver Program countries that also have large numbers of citizens who are Syrian foreign fighters. Generally, we have strong information-sharing relationships with these countries. But, with their help, we will enhance this capability. We need to ensure that we are doing all we can to identify those who, by their travel patterns, attempt to hide their association with terrorist groups.

We are encouraging more countries to join the United States in using tools like Advance Passenger Information and Passenger Name Record collection, which will help to identify terrorist travel patterns.

Fourth, within the U.S. government, DHS and our interagency partners in law enforcement and the intelligence community, are enhancing our ability to share information with each other about suspicious individuals.

Fifth, we are continually on guard against the potential domestic-based, home-grown terrorist who may be lurking in our own society: the independent actor or “lone wolf” who did not train at a terrorist camp or join the ranks of a terrorist organization overseas, but who is inspired here at home by a group’s social media, literature or violent extremist ideology. In many respects, this is the hardest terrorist threat to detect, and the one I worry most about.

To address the domestic “lone wolf” threat, I have directed that DHS build on our partnerships with state and local law enforcement in a way that enhances community relationships. The local police and fire departments are the first responders to any crisis in our homeland. The local police, more than the federal government, have their finger on the pulse of the local community from which a domestic terrorist may come.

To address the home-grown terrorist who may be lurking in our midst, we must also emphasize the need for help from the public. “If You See Something, Say Something” is more than a slogan. For example, last week we sent a private sector advisory identifying for retail businesses a long list of materials that could be used as explosive precursors, and the types of suspicious behavior that a retailer should look for from someone who buys a lot of these materials.

Within DHS, we have outreach programs with communities who themselves are engaging youth in violence prevention. I have directed that we step up these programs and I personally participate in them. In June I met with a Syrian-American community group in a Chicago suburb. Next week I will meet with a Somali community in Columbus, Ohio. In October, the White House will host a summit on domestic efforts to prevent violent extremism, and address the full lifecycle of radicalization to violence posed by foreign fighter threats. The efforts highlighted at this summit are meant to increase the participation of faith-based organizations, mental health providers, social service providers, and youth-affiliated groups in local efforts to counter violent extremism.

Over the last 13 years, we have vastly improved this Nation’s ability to detect and disrupt terrorist plots overseas before they reach the homeland. Here at home, federal law enforcement does an excellent job, time and again, of identifying, investigating, arresting and prosecuting scores of individuals before they commit terrorist acts. But we continue to face real terrorist enemies and real terrorist threats and we must all remain vigilant.

Community-based, regionally — even globally — engaged, collaborative efforts to prevent, protect, prepare, mitigate, and respond.  Recovery and resilience are implied, but — as usual —  given a bit less attention.

June 12, 2014

Foxes, hedgehogs and homeland security

“The fox knows many things, but the hedgehog knows one big thing.”

                                                                                         Archilochous

PART I: COUNTERTERRORISM

On May 21 the Secretary of Homeland Security affirmed that counterterrorism is the primary mission of the Department.  But speaking to a large crowd of mostly state and local officials, Mr. Johnson evidently felt compelled to — or did not have the energy to do more than — review the many activities of the Department and, at least to my ears, focused particular attention on the challenge of illegal immigration (See Part II below).  The DHS website does not provide a transcript.  I wonder if whoever prepared the read-out was actually there.

On May 28 the President told West Point graduates:

For the foreseeable future, the most direct threat to America at home and abroad remains terrorism.  But a strategy that involves invading every country that harbors terrorist networks is naïve and unsustainable.  I believe we must shift our counterterrorism strategy…  So we have to develop a strategy that matches this diffuse threat — one that expands our reach without sending forces that stretch our military too thin, or stir up local resentments.  We need partners to fight terrorists alongside us.  And empowering partners is a large part of what we have done and what we are currently doing in Afghanistan. 

The domestic analog of this strategy also needs to empower its partners.  Our homeland security framework should be especially attentive to vulnerabilities and creative regarding strengths. This is certainly important in terms of counterterrorism, but applies across most other hazards as well… if we will take the opportunity to notice.

Neither this White House nor its predecessor has given anything close to the same quality of attention to partnering with the private sector or the states or other crucial domestic players that is given to collaborating with NATO or the G-7 or key individual allies. The diplomatic-military-intelligence triad enjoys an advantage of clout, connections, and intellectual capital that far exceeds what we call homeland security.  Counterterrorism and cybersecurity are just about the only aspects of HS that earn any sustained attention by policy elites.

And this is no longer the elite of yore: foxes ala Isaiah Berlin moving from investment banking to the OSS to the Herald-Tribune to an embassy or two and then decamping for a few years at the Ford Foundation.  More and more our modern masters are process managers, mathematicians, and other rather wonky hedgehogs “who know one big thing”.  And they are inclined to leave other big things — if any might emerge — to someone else.  They notice what they know.

Since mid-May I have had two separate conversations with recently retired senior counterterrorism guys.  One has been out for about a year.  The other just retired last month.  They sounded alot alike.  Most of what they said you already know.  What struck me was what they did not say — seemed unwilling to seriously address — even in an informal setting and with their official duties behind them.  (But then again, look what I am doing with the conversations.)

The potentially meaningful silence I observed related to terrorist motivation. Americans currently fighting in Syria were mentioned by both.  Domestic terrorist trends were discussed. Recent events in the Sahel were reviewed.  In each exchange there were similar references to “behavioral indicators” and “spatial analysis” and “antecedent conduct” and “heuristics” and “covariance” and “probability”.   There was considerable reluctance to engage any questions related to ideology, religion, tribal-identity, grievance, or social, economic, and political “co-indicators”.  When these questions were asked both experts bridged-back to statistics as quickly as possible.

Speaking of statistics, an N of 2 is seldom significant.  But still the similarity was striking.  Rather than discussing fleshy and potentially very bloody human beings, my conversation partners might have been describing Brownian physics: The random motion of particles suspended in flux.

PART II: IMMIGRATION

I considered Secretary Johnson’s May 21 remarks misaligned with his audience.  He had a crowd with rather specific priorities.  He gave a generic speech.  Lost opportunity.

The somewhat greater focus I heard him give immigration may have been more the result of narrative punch than proportion or intention.  The Secretary mentioned that on Mother’s Day his wife joined him to visit a hosting center in Texas for detained unaccompanied minors (UAMs in trade-talk).  I was not taking notes, but his brief description was sufficient to imagine the kind of purgatorial scenes widely reported this week.

Immigration Center

Holding area for unaccompanied minors in Nogales, Arizona (USAToday).  Please note portable toilets in the far ground. Those are cots in the fore ground.

Mr. Johnson shared being profoundly affected and having since taken several steps to mitigate the troubling situation. This was more than three weeks ago.  I have wondered how much the Secretary’s action might be cause of (or only coincident with) this week’s media blitz.  I also wonder if our attention to this issue will be any more long-lasting or effectual than that given the kidnapped Nigerian school girls.  The crucial difference may be that Secretary Johnson is paying attention and has the authority to ensure others notice and act as well.

In the case of both Nigeria and Nogales a “policy problem” has been personalized.  In each case the “others” — even the “its” — who are victims have reclaimed their humanity. Or more accurately many of us have acknowledged what was always the case, but we had neglected to notice.

We are usually as effective depersonalizing victims as we are dehumanizing terrorists.

III. (IN)ATTENTION, INTENTION, AND INFLUENCE

Behavioral indicators and other more objective analytic techniques have emerged, in part, to discourage unthinking, unhelpful, misleading, gross profiling of potential terrorists; such as most Muslims or at least those with beards… or Sikhs who wear beards and turbans (but are not Muslim and at least in the United States have only been the target — not the source — of terrorism).

I am in favor of science, social science and statistics. I very much depend on hedgehogs and have tried to be better at burrowing into a hedge myself.

But this need not — ought not — exclude the knowledgeable, mindful, insightful application of the humanities (e.g. languages, literature. art, philosophy, religion, history).  We should especially avoid excluding our humanity.

In dealing with homeland security problems we need to recognize cause and effect.  This can often be done with a decidedly disinterested stance.  But there are other contexts when subjective human insight can play an important role. There is a place for empathy even in counterterrorism.

At West Point the President also said, “We must not create more enemies than we take off the battlefield.”  We might begin by recognizing that many of our most precious values are disruptive to more traditional societies… as well as some neighbors down the street.  Being disruptive is often — even accurately — perceived as threatening.  Living our values with integrity while defusing the unintended threat to others is a task requiring both fox and hedgehog, as many as we can get with eyes and ears wide open to the unexpected.

In Philadelphia Secretary Johnson saw a thousand state and local leaders and he didn’t seem to fully recognize their potential.  In the particular moment he was unable to differentiate this crowd from other crowds. He only saw what he was prepared to see. But fortunately when Secretary Johnson saw a thousand illegal immigrants crowded into a detention center in McAllen, Texas he recognized: these are children.  Not just UAMs. His observations and  actions were informed by being a father as well as a cabinet secretary.  Solutions will remain elusive, but much more likely when the problem is engaged as a whole.

May 29, 2014

“Sharing is caring”

Filed under: Intelligence and Info-Sharing — by Christopher Bellavita on May 29, 2014

Here’s a line from President Obama’s West Point talk on May 28th:

That’s why we’re putting in place new restrictions on how America collects and uses intelligence — because we will have fewer partners and be less effective if a perception takes hold that we’re conducting surveillance against ordinary citizens.

When it comes to conducting surveillance on Americans, there’s more to look at than government.

The same day the President spoke to the army cadets,  Leo Mirani and Max Nisen at Quartz  wrote about the “The nine companies that know more about you than Google or Facebook”.

The companies, called “data brokers” are: Acxiom, Corelogic, Datalogix, eBureau, ID Analytics, Intelius, PeekYou, Rapleaf, and Recorded Future.   I’ve never heard of them.

Their business  - and there are more companies in the business than these nine – is “collecting and selling personal data—typically without your knowledge or consent—that are used to verify identity, help marketers, detect fraud and help perform detailed “people searches.”

You might want to check out http://www.spokeo.com/ to get an idea what data brokers can already “share” about you.

The Quartz story is in response to a Federal Trade Commission report (available at this link) titled “Data Brokers: A Call for Transparency and Accountability.”

One finding from the FTC report:

Data brokers combine and analyze data about consumers to make inferences about them, including potentially sensitive inferences such as those related to ethnicity, income, religion, political leanings, age, and health conditions. Potentially sensitive categories from the study are “Urban Scramble” and “Mobile Mixers,” both of which include a high concentration of Latinos and African-Americans with low incomes. The category “Rural Everlasting” includes single men and women over age 66 with “low educational attainment and low net worths.” Other potentially sensitive categories include health-related topics or conditions, such as pregnancy, diabetes, and high cholesterol.

Commenting on the recent European Court of Justice decision that people have [a]“right to be forgotten” on the internet, Evgeny Morozov gives an example of how consumer data can be used in ways more operationally harmful to regular people than NSA MetaDataCrunching (a term I shamelessly made up):

… the knowledge that you drink coffee rather than kale juice in the morning would surely improve [a bank or insurance company's] ability to predict whether you might suffer a heart attack in the next five years—an extremely relevant bit of information for deciding whether to give you a loan or insurance and at what rates. …  As Douglas Merrill, the former chief information officer of Google and the founder of ZestFinance, a start-up that looks at more than 80,000 data points to assess your suitability for credit, puts it: “All data is credit data.” 

So, what data are these data brokers collecting?  No one knows with certainty because the companies do not have to tell people what they are gathering.

Appendix B in the FTC report provides something called an “Illustrative list of Data Elements and Segments,”  information someone can buy to help figure out what and how to sell — or not to sell  –  to you.    I suspect there are other uses for the data. I’m guessing there also are more Elements and Segments than are in the FTC appendix.

Identifying Data
• Name
• Previously Used Names
• Address
• Address History
• Longitude and Latitude
• Phone Numbers
• Email Address

Sensitive Identifying Data
• Social Security Number
• Driver’s License Number
• Birth Date
• Birth Dates of Each Child in Household
• Birth Date of Family Members in

Household Demographic Data
• Age
• Height
• Weight
• Gender
• Race & Ethnicity
• Country of Origin
• Religion (by Surname at the Household Level)
• Language
• Marital Status
• Presence of Elderly Parent
• Presence of Children in Household
• Education Level
• Occupation
• Family Ties
• Demographic Characteristics of Family Members in Household
• Number of Surnames in Household
• Veteran in Household
• Grandparent in House
• Spanish Speaker
• Foreign Language Household (e.g., Russian, Hindi, Tagalog, Cantonese)
• Households with a Householder who is Hispanic Origin or Latino
• Employed – White Collar Occupation
• Employed – Blue Collar Occupation
• Work at Home Flag
• Length of Residence
• Household Size
• Congressional District
• Single Parent with Children
• Ethnic and Religious Affiliations

Court and Public Record Data
• Bankruptcies
• Criminal Offenses and Convictions
• Judgments
• Liens
• Marriage Licenses
• State Licenses and Registrations (e.g., Hunting, Fishing, Professional)
• Voting Registration and Party Identification

Social Media and Technology Data
• Electronics Purchases
• Friend Connections
• Internet Connection Type
• Internet Provider
• Level of Usage
• Heavy Facebook User
• Heavy Twitter User
• Twitter User with 250+ Friends
• Is a Member of over 5 Social Networks
• Online Influence
• Operating System
• Software Purchases
• Type of Media Posted
• Uploaded Pictures
• Use of Long Distance Calling Services
• Presence of Computer Owner
• Use of Mobile Devices
• Social Media and Internet Accounts including: Digg, Facebook, Flickr, Flixster, Friendster, hi5, Hotmail, LinkedIn, Live Journal, MySpace, Twitter, Amazon, Bebo, CafeMom, DailyMotion, Match, myYearbook, NBA.com, Pandora, Photobucket, WordPress, and Yahoo

Home and Neighborhood Data
• Census Tract Data
• Address Coded as Public/Government Housing
• Dwelling Type
• Heating and Cooling
• Home Equity
• Home Loan Amount and Interest Rate
• Home Size
• Lender Type
• Length of Residence
• Listing Price
• Market Value
• Move Date
• Neighborhood Criminal, Demographic, and Business Data
• Number of Baths
• Number of Rooms
• Number of Units
• Presence of Fireplace
• Presence of Garage
• Presence of Home Pool
• Rent Price
• Type of Owner
• Type of Roof
• Year Built

General Interest Data
• Apparel Preferences
• Attendance at Sporting Events
• Charitable Giving
• Gambling – Casinos
• Gambling – State Lotteries
• Thrifty Elders
• Life Events (e.g., Retirement, Newlywed, Expectant Parent)
• Magazine and Catalog Subscriptions
• Media Channels Used
• Participation in Outdoor Activities (e.g., Golf, Motorcycling, Skiing, Camping)
• Participation in Sweepstakes or Contests
• Pets
• Dog Owner
• Political Leanings
• Assimilation Code
• Preferred Celebrities
• Preferred Movie Genres
• Preferred Music Genres
• Reading and Listening Preferences
• Donor (e.g., Religious, Political, Health Causes)
• Financial Newsletter Subscriber
• Upscale Retail Card Holder
• Affluent Baby Boomer
• Working-Class Moms
• Working Woman
• African-American Professional
• Membership Clubs – Self-Help
• Membership Clubs – Wines
• Exercise – Sporty Living
• Winter Activity Enthusiast
• Participant – Motorcycling
• Outdoor/Hunting & Shooting
• Biker/Hell’s Angels
• Santa Fe/Native American Lifestyle
• New Age/Organic Lifestyle
• Is a Member of over 5 Shopping Sites
• Media Channel Usage – Daytime TV
• Bible Lifestyle
• Leans Left
• Political Conservative
• Political Liberal
• Activism & Social Issues

Financial Data
• Ability to Afford Products
• Credit Card User
• Presence of Gold or Platinum Card
• Credit Worthiness
• Recent Mortgage Borrower
• Pennywise Mortgagee
• Financially Challenged
• Owns Stocks or Bonds
• Investment Interests
• Discretionary Income Level
• Credit Active
• Credit Relationship with Financial or Loan Company
• Credit Relationship with Low-End Standalone Department Store
• Number of Investment Properties Owned
• Estimated Income
• Life Insurance
• Loans
• Net Worth Indicator
• Underbanked Indicator
• Tax Return Transcripts
• Type of Credit Cards

Vehicle Data
• Brand Preferences
• Insurance Renewal
• Make & Model
• Vehicles Owned
• Vehicle Identification Numbers
• Vehicle Value Index
• Propensity to Purchase a New or Used Vehicle
• Propensity to Purchase a Particular Vehicle Type (e.g., SUV, Coupe, Sedan)
• Motor Cycle Owner (e.g., Harley, Off-Road Trail Bike)
• Motor Cycle Purchased 0-6 Months Ago
• Boat Owner
• Purchase Date
• Purchase Information
• Intend to Purchase – Vehicle

Travel Data
• Read Books or Magazines About Travel
• Travel Purchase – Highest Price Paid
• Date of Last Travel Purchase
• Air Services – Frequent Flyer
• Vacation Property
• Vacation Type (e.g., Casino, Time Share, Cruises, RV)
• Cruises Booked
• Preferred Vacation Destination
• Preferred Airline

Purchase Behavior Data
• Amount Spent on Goods
• Buying Activity
• Method of Payment
• Number of Orders
• Buying Channel Preference (e.g., Internet, Mail, Phone)
• Types of Purchases
• Military Memorabilia/Weaponry
• Shooting Games
• Guns and Ammunition
• Christian Religious Products
• Jewish Holidays/Judaica Gifts
• Kwanzaa/African-Americana Gifts
• Type of Entertainment Purchased
• Type of Food Purchased
• Average Days Between Orders
• Last Online Order Date
• Last Offline Order Date
• Online Orders $500-$999.99 Range
• Offline Orders $1000+ Range
• Number of Orders – Low-Scale Catalogs
• Number of Orders – High-Scale Catalogs
• Retail Purchases – Most Frequent Category
• Mail Order Responder – Insurance
• Mailability Score
• Dollars – Apparel – Women’s Plus Sizes
• Dollars – Apparel – Men’s Big & Tall
• Books – Mind & Body/Self-Help
• Internet Shopper
• Novelty Elvis

Health Data
• Ailment and Prescription Online Search Propensity
• Propensity to Order Prescriptions by Mail
• Smoker in Household
• Tobacco Usage
• Over the Counter Drug Purchases
• Geriatric Supplies
• Use of Corrective Lenses or Contacts
• Allergy Sufferer
• Have Individual Health Insurance Plan
• Buy Disability Insurance
• Buy Supplemental to Medicare/Medicaid Individual Insurance
• Brand Name Medicine Preference
• Magazines – Health
• Weight Loss & Supplements
• Purchase History or Reported Interest in Health Topics including: Allergies, Arthritis, Medicine Preferences, Cholesterol, Diabetes, Dieting, Body Shaping, Alternative Medicine, Beauty/Physical Enhancement, Disabilities, Homeopathic Remedies, Organic Focus, Orthopedics, and Senior Needs

Imagine if government collected and used Elements and Segments data on Americans — all in the name of providing more effective and more efficient services, of course.  The Nation might long for the good old days when it was only NSA  peeking through the windows.

Somehow it’s different when the private sector collects and uses this information.  I wonder why that is.

Maybe David Eggers got it right in his book, The Circle:

“Secrets are lies. Caring is sharing. Privacy is theft.”

 

May 15, 2014

How did the government come to spy on millions of Americans?

Filed under: Intelligence and Info-Sharing — by Christopher Bellavita on May 15, 2014

That’s the question PBS’ Frontline asks in Part 1 of a two-part television program: The United States of Secrets.

I watched it Tuesday night (thanks to a heads up from a colleague in the intel world).  The 114 minute program is available online at  http://www.pbs.org/wgbh/pages/frontline/united-states-of-secrets/ .  I don’t know how long it will be available.  I think it’s worth the 2 hours to watch it.

The story begins with Edward Snowden’s initial efforts to find a newspaper reporter who would accept his cache of NSA documents.  But the program is not about Snowden.  At most he’s the subject for less than 10 minutes.  The story is about “The Program,” the still unfurling domestic information collection effort that began after September 11, 2001 and — apparently — continues.  It’s about patriotism, ethics, heroism, personal tragedy, tough choices, lying, prosecution, persecution, and using the Constitution as a dependent variable.

While the program has a point of view, the main characters in a tale as narratively engaging as All The President’s Men do get their say.  You can watch extended interviews of the main characters – The Whistleblowers (Snowden is not one of them), the Government Officials (including Andrew Card, Michael Hayden, and Alberto Gonzales), and the journalists (including Glen Greenwald) — at this link: http://www.pbs.org/wgbh/pages/frontline/oral-history/united-states-of-secrets/.

Here’s what PBS says Part 2 — “How Silicon Valley Feeds the NSA’s Global Dragnet” — will be about.

On May 20, FRONTLINE continues the story of mass surveillance in America in part two of United States of Secrets, an investigation into the secret relationship between Silicon Valley and the National Security Agency.

Companies like Google and Facebook gather massive amounts of data on its users around the world, which they use to sell and create advertisements. To the U.S. government, it is a treasure-trove of information that regularly reveals what we do, who we know and where we go.

The revelations by former NSA contractor Edward Snowden helped to uncover the role the tech industry played — at times unwittingly, but often with consent — in the NSA’s massive dragnet.

So how did the tech giants react when the government asked them to turn over data on millions of ordinary American citizens? And how much do companies like Google, Facebook and Yahoo really know about you?

Find out on May 20 starting at 10 p.m. EST on most PBS stations. (Check local listings.)

I hope one can ignore the marketing hyperbole.  Tuesday’s program was unsettling.

 

April 29, 2014

You can never be sure where interesting ideas might come from

Filed under: Intelligence and Info-Sharing — by Christopher Bellavita on April 29, 2014

About two years ago, someone in one of my classes showed the following two minute video during a break.  It illustrates, in a humorous way, the importance of deconfliction.

 

You never can tell where ideas will come from. Two years later, the woman who showed the video completed her master’s thesis describing the factors that contribute to inadvertent, and sometimes violent “police-on-police” encounters and how to improve deconfliction efforts in the US.

Here’s the abstract of her thesis.  It will be available from the Homeland Security Digital Library in a few weeks, but if you’d like a copy before then, send me an email: christopherbellavita [at] gmail [dotcom]:

Police-on-police encounters, also referred to as Blue-on-Blue, are serious occurrences that can compromise investigations, cause physical injuries, or worse—result in death to officers, informants and/or innocent bystanders. Law enforcement deconfliction is the protocol that was developed to address this specific issue. This research focuses on the scope and breadth of federal law enforcement deconfliction processes within the United States. An examination of these processes uncovered complex organizational issues and human factors that undermine complete and consistent reporting of both failed and successful deconfliction events. With national oversight and accountability, however, gaps and vulnerabilities in deconfliction operations could be addressed, and a repository to archive and evaluate these efforts could be formed. This thesis proposes that the Blue Diamond Deconfliction Division (BD3) should be established within the United States Attorney’s Office to provide deconfliction oversight and reporting, reduce federal law enforcement organizational and fiscal inefficiencies, and most importantly, save lives.

April 16, 2014

Disengaging in order to more fully engage?

Filed under: Intelligence and Info-Sharing,Radicalization,Terrorist Threats & Attacks — by Philip J. Palin on April 16, 2014

Two separate events, disconnected in any substantive way (as far as I know) but an interesting coincidence in terms of timing:

Monday the Muslim Public Affairs Council held a press conference alongside notable Muslim community leaders at the National Press Club to announce a new campaign to actively prevent violent extremism. Called the Safe Spaces Initiative, the campaign is the first major national grassroots effort to equip American Muslim community and campus leaders with practical tools for developing healthy communities as well as intervention strategies for troubled individuals. You can download the paper from the Safe Spaces website.

Tuesday the New York Police Department said it would disband a special unit charged with detecting possible terrorist threats by carrying out secret surveillance of Muslim groups. The squad that conducted the surveillance, known as the Demographics Unit, was formed in 2003. It brought the NYPD under fire from community groups and activists who accused the force of abusing civil rights and profiling.

New York Mayor Bill de Blasio said, “This reform is a critical step forward in easing tensions between the police and the communities they serve, so that our cops and our citizens can help one another go after the real bad guys.”

April 10, 2014

Mass aggregation and analysis of data: Debate, discussion, desiderata

Filed under: Intelligence and Info-Sharing,Legal Issues,Media,Privacy and Security — by Philip J. Palin on April 10, 2014

On Monday the Supreme Court declined a petition to expedite consideration of Klayman v. Obama.   The plantiffs had sought to by-pass appellate review given the government’s “outrageous intrusion of privacy” confirmed by a Federal District Court’s finding.

Klayman is one of several cases focused on the government’s aggregation and analysis of metadata, as exposed by the Edward Snowden document releases.  (Prior consideration by HLSWatch is available here.)

Since the December decision in Klayman at least one other Federal District Court has affirmed the constitutionality of actions that the judge in Klayman suggested would cause Madison to spin in his grave.  A variety of related cases — and contending judgments — are working their way through the courts.

It would have been unusual for the Supreme Court to abbreviate the process.  On this issue a fulsome set of legal engagements should serve to clarify key issues.

The political process around mass surveillance is also advancing.  On March 25 the President outlined several reforms to how metadata is collected and accessed.  The Republican Chair and ranking Democrat on the House Intelligence Committee have proposed their own reforms. There is also an effort underway to frame-up policy directions for the digital domain that go beyond a privacy-v-security binary.

The political context features several advocacy groups, such as the ACLU and EFF, pressing for privacy rights; several commercial organizations including AT&T, Verizon, Google and Facebook reluctant to be identified  as co-conspirators in invading consumer privacy; and a mainstream media keen to cover any source of conflict.

At least in the United States there is deeply divided public opinion.  For example one January poll found that 48 percent of respondents approved and 47 percent did not approve of tracking phone calls for potential terrorist links. Roughly twenty-percent of those who approved of the phone tracking also agreed the program is “too much intrusion into Americans’ private life”.   This tracks with what seems to be increasing concern that “anti-terrorism policies” threaten civil liberty, even as support for specific anti-terrorism activities remains strong.

TREND: What concerns you more about the government’s anti-terrorism policies, that they have gone too far in restricting the average person’s civil liberties, or that they have not gone far enough to adequately protect the country?
                     Jan 09  Oct 01  Aug 02  Jul 10  Jan 14
                     2014    2013    2013    2013    2010

Gone too far         51      43      46      45      25
Not gone far enough  33      40      39      40      63
DK/NA                16      17      15      15      12

Are these public attitudes contradictory… ambivalent… paradoxical?  Are these the ill-considered judgments of a poorly informed mass or a signal of profound crowd-wisdom?

Our intellectual culture is (mostly unconsciously) influenced by Hegel (abstract, negative, concrete or sometimes thesis, antithesis, synthesis and more).  The law is especially Hegelian in its dependence on the adversarial process.  Well beyond the law we are inclined to engage contending perspectives in search for ideal solutions.  For some this ideal emerges from historical (empirical) context.  For others there is an ideal that transcends history and experience.  In either case there can be a tendency to exclude or negate one option in order to achieve an other.

It is worth noting this is Hegelianism without Hegel who wrote, “Genuine tragedies in the world are not conflicts between right and wrong. They are conflicts between two rights.”  But much of our current discontent with so many aspects of politics, law, and governance may very well emerge from an intellectual conceit that seeks the best and disdains the rest.

If you characterize an issue as privacy versus security, I will probably lean toward privacy.  To acknowledge this predisposition can be helpful. It ought not be confused with thought. First principles inform but very seldom resolve our problem-solving.  Thinking requires an examination of context and contingencies and potential consequences.

Privacy and security are not necessarily in conflict, as for example in the language of the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”

When privacy and security are perceived to be in conflict, what is the source of conflict? What are the contingent Goods that an active instance of privacy or security seems to threaten?  For surely neither privacy nor security are ends-in-themselves.  Rather each are aspects of a more comprehensive Good or Goods.  Can we articulate our valuations to each other so that we might resolve the perceived conflict by directly addressing the goals which privacy and security are thought to advance (or retard)?  Are we disagreeing over first principles or tertiary techniques?

Issues of privacy and security are clearly being considered as matters of law.  In these legal considerations ancient ethical concerns are referenced and there will clearly be contemporary ethical implications whatever the legal outcomes.

The current political arguments strike me as mostly rhetorical rather than ethical.   Typically absolute rights or obvious needs are assumed much more than demonstrated. Strawmen are set forth by every side.

In both the legal and political domains the consideration tends to be adversarial — pseudo-Hegelian — in method.   I have no objection to this as one of several methods by which a shared understanding can emerge.  I am concerned if it is the predominant method.

Where do you participate in serious and sustained consideration of important ethical issues?   Especially civic issues such as the matter of privacy v. security?  Where and how have you seen non-adversarial methods generate practical solutions?

I hope your answers are more fruitful than my own.  If not, I wonder how much the paucity of such approaches suggest a social-civic anemia for which our current political confrontations are but a symptom?

January 30, 2014

The mitigation message

East Rivers Elementary

Cobb County elementary school children sleeping Tuesday night in the gym

Last Tuesday my train pulled into Union Station, Washington DC, shortly before noon.  The station and surrounding city were unusually quiet.  The Federal Office of Personnel Management had given most of its employees liberal leave to stay home.   Most area schools followed this lead.

On Capitol Hill — where I still had some meetings — the snow did not really begin until about 2:00 and was not quite as bad as predicted even into the height of the typical rush hour, which given the OPM decision had much more rush than usual.

By the next morning there was nearly 4 inches of snow at Reagan Airport and over 8 at Dulles.  Wednesday got underway with official delays.

Still some were inclined to second-guess the Tuesday mitigation decision made with the best possible information Monday night.

I hope the second-guessers are giving close attention to the more recent news out of Atlanta.

Even at dawn Tuesday, January 28 the best information available to Georgia decision-makers — very much including the general public — was that the worst weather would track south and east of Atlanta.  Beginning between about 7 and 8 that morning the best information began to shift.  By 10 it was snowing in Bartow County on the northwestern edge of metro Atlanta.  By 11 it was snowing hard and icing.  At 11:23 Cobb County Schools (along the Northwest Atlanta beltway) closed and began busing students home.  At 12:15 Georgia DOT suggested private-sector workers head home.

By 1:00 many Atlanta highways were grid-locked, more the result of sudden volume than — yet — because of the weather.  (Should bring back unpleasant memories of similar events in Chicago and DC in recent years.)  As some of you know, traffic is not an unusual problem in Atlanta, even in fragrant and sunny springtime.

At 1:55 the Governor declared a State of Emergency; the most immediate effect being to pour state employees onto already packed roads.  Across the United States we are predisposed to evacuations.  It is a bad — sometimes, someplaces deadly — habit.

By mid-afternoon the snow and especially ice were adding to the problems.  You have probably seen the videos.  There were several hundred vehicle accidents just in the Atlanta area.

On Wednesday many Tuesday afternoon commuters were still stuck in their cars.  Some had abandoned their vehicles.  In several cases school buses were forced to retreat back to classrooms.  Several hundred children — the numbers are still unclear — spent the night in their schools. (See picture above.) My ten-year-old nephew got home from school, but neither of his parents could.  Shane spent the night at the neighbors.

There will be after-action analyses. There will be studies.  There will be hearings.  There will be blame-gaming. There will be lessons-learned.

What I hope someone will declare clearly and well is that 1) there are many things we cannot accurately predict, 2) especially in unpredictable contexts innate vulnerabilities are exposed, and 3) in densely networked environments, like cities, these vulnerabilities can sometimes meet and mate, propagating suddenly and prolifically.

So… for a whole host of risks we are wise to invest in mitigation and to keep in mind that what will always seem an over-investment before will likely pay profitable dividends after.

This principle applies well beyond the weather, including water systems, supply chains, fuel networks, bridges, and much, much more.

January 29, 2014

Senate Intelligence Hearing: Current and Projected National Security Threats Against the United States

This morning the Senate Select Committee on Intelligence held a hearing “Current and Projected National Security Threats Against the United States.” Testifying were the Directors of National Intelligence, CIA, DIA, and FBI.

I’ve yet to watch the hearing or read the transcript, but thought they’d be worth sharing.

 

The transcript can be found here: http://www.washingtonpost.com/world/national-security/transcript-senate-intelligence-hearing-on-national-security-threats/2014/01/29/b5913184-8912-11e3-833c-33098f9e5267_story.html

January 17, 2014

The President’s remarks on signals intelligence

Filed under: Cybersecurity,Intelligence and Info-Sharing,Privacy and Security — by Philip J. Palin on January 17, 2014

This is a cut-and-paste from the White House website of the President’s remarks given at the Department of Justice earlier today. The topic. as headlined by the White House, is “signals intelligence”. I have highlighted a few phrases in bold, toward the end of a long day and longer week. No particular insight is promised in the highlights. But especially with this President, a careful read of the whole is almost always worth it.

–+–

THE PRESIDENT: At the dawn of our Republic, a small, secret surveillance committee borne out of the “The Sons of Liberty” was established in Boston. And the group’s members included Paul Revere. At night, they would patrol the streets, reporting back any signs that the British were preparing raids against America’s early Patriots.

Throughout American history, intelligence has helped secure our country and our freedoms. In the Civil War, Union balloon reconnaissance tracked the size of Confederate armies by counting the number of campfires. In World War II, code-breakers gave us insights into Japanese war plans, and when Patton marched across Europe, intercepted communications helped save the lives of his troops. After the war, the rise of the Iron Curtain and nuclear weapons only increased the need for sustained intelligence gathering. And so, in the early days of the Cold War, President Truman created the National Security Agency, or NSA, to give us insights into the Soviet bloc, and provide our leaders with information they needed to confront aggression and avert catastrophe.

Throughout this evolution, we benefited from both our Constitution and our traditions of limited government. U.S. intelligence agencies were anchored in a system of checks and balances — with oversight from elected leaders, and protections for ordinary citizens. Meanwhile, totalitarian states like East Germany offered a cautionary tale of what could happen when vast, unchecked surveillance turned citizens into informers, and persecuted people for what they said in the privacy of their own homes.

In fact, even the United States proved not to be immune to the abuse of surveillance. And in the 1960s, government spied on civil rights leaders and critics of the Vietnam War. And partly in response to these revelations, additional laws were established in the 1970s to ensure that our intelligence capabilities could not be misused against our citizens. In the long, twilight struggle against Communism, we had been reminded that the very liberties that we sought to preserve could not be sacrificed at the altar of national security.

If the fall of the Soviet Union left America without a competing superpower, emerging threats from terrorist groups, and the proliferation of weapons of mass destruction placed new and in some ways more complicated demands on our intelligence agencies. Globalization and the Internet made these threats more acute, as technology erased borders and empowered individuals to project great violence, as well as great good. Moreover, these new threats raised new legal and new policy questions. For while few doubted the legitimacy of spying on hostile states, our framework of laws was not fully adapted to prevent terrorist attacks by individuals acting on their own, or acting in small, ideologically driven groups on behalf of a foreign power.

The horror of September 11th brought all these issues to the fore. Across the political spectrum, Americans recognized that we had to adapt to a world in which a bomb could be built in a basement, and our electric grid could be shut down by operators an ocean away. We were shaken by the signs we had missed leading up to the attacks — how the hijackers had made phone calls to known extremists and traveled to suspicious places. So we demanded that our intelligence community improve its capabilities, and that law enforcement change practices to focus more on preventing attacks before they happen than prosecuting terrorists after an attack.

It is hard to overstate the transformation America’s intelligence community had to go through after 9/11. Our agencies suddenly needed to do far more than the traditional mission of monitoring hostile powers and gathering information for policymakers. Instead, they were now asked to identify and target plotters in some of the most remote parts of the world, and to anticipate the actions of networks that, by their very nature, cannot be easily penetrated with spies or informants.

And it is a testimony to the hard work and dedication of the men and women of our intelligence community that over the past decade we’ve made enormous strides in fulfilling this mission. Today, new capabilities allow intelligence agencies to track who a terrorist is in contact with, and follow the trail of his travel or his funding. New laws allow information to be collected and shared more quickly and effectively between federal agencies, and state and local law enforcement. Relationships with foreign intelligence services have expanded, and our capacity to repel cyber-attacks have been strengthened. And taken together, these efforts have prevented multiple attacks and saved innocent lives — not just here in the United States, but around the globe.

And yet, in our rush to respond to a very real and novel set of threats, the risk of government overreach — the possibility that we lose some of our core liberties in pursuit of security — also became more pronounced. We saw, in the immediate aftermath of 9/11, our government engaged in enhanced interrogation techniques that contradicted our values. As a Senator, I was critical of several practices, such as warrantless wiretaps. And all too often new authorities were instituted without adequate public debate.

Through a combination of action by the courts, increased congressional oversight, and adjustments by the previous administration, some of the worst excesses that emerged after 9/11 were curbed by the time I took office. But a variety of factors have continued to complicate America’s efforts to both defend our nation and uphold our civil liberties.

First, the same technological advances that allow U.S. intelligence agencies to pinpoint an al Qaeda cell in Yemen or an email between two terrorists in the Sahel also mean that many routine communications around the world are within our reach. And at a time when more and more of our lives are digital, that prospect is disquieting for all of us.

Second, the combination of increased digital information and powerful supercomputers offers intelligence agencies the possibility of sifting through massive amounts of bulk data to identify patterns or pursue leads that may thwart impending threats. It’s a powerful tool. But the government collection and storage of such bulk data also creates a potential for abuse.

Third, the legal safeguards that restrict surveillance against U.S. persons without a warrant do not apply to foreign persons overseas. This is not unique to America; few, if any, spy agencies around the world constrain their activities beyond their own borders. And the whole point of intelligence is to obtain information that is not publicly available. But America’s capabilities are unique, and the power of new technologies means that there are fewer and fewer technical constraints on what we can do. That places a special obligation on us to ask tough questions about what we should do.

And finally, intelligence agencies cannot function without secrecy, which makes their work less subject to public debate. Yet there is an inevitable bias not only within the intelligence community, but among all of us who are responsible for national security, to collect more information about the world, not less. So in the absence of institutional requirements for regular debate — and oversight that is public, as well as private or classified — the danger of government overreach becomes more acute. And this is particularly true when surveillance technology and our reliance on digital information is evolving much faster than our laws.

For all these reasons, I maintained a healthy skepticism toward our surveillance programs after I became President. I ordered that our programs be reviewed by my national security team and our lawyers, and in some cases I ordered changes in how we did business. We increased oversight and auditing, including new structures aimed at compliance. Improved rules were proposed by the government and approved by the Foreign Intelligence Surveillance Court. And we sought to keep Congress continually updated on these activities.

What I did not do is stop these programs wholesale — not only because I felt that they made us more secure, but also because nothing in that initial review, and nothing that I have learned since, indicated that our intelligence community has sought to violate the law or is cavalier about the civil liberties of their fellow citizens.

To the contrary, in an extraordinarily difficult job — one in which actions are second-guessed, success is unreported, and failure can be catastrophic — the men and women of the intelligence community, including the NSA, consistently follow protocols designed to protect the privacy of ordinary people. They’re not abusing authorities in order to listen to your private phone calls or read your emails. When mistakes are made — which is inevitable in any large and complicated human enterprise — they correct those mistakes. Laboring in obscurity, often unable to discuss their work even with family and friends, the men and women at the NSA know that if another 9/11 or massive cyber-attack occurs, they will be asked, by Congress and the media, why they failed to connect the dots. What sustains those who work at NSA and our other intelligence agencies through all these pressures is the knowledge that their professionalism and dedication play a central role in the defense of our nation.

Now, to say that our intelligence community follows the law, and is staffed by patriots, is not to suggest that I or others in my administration felt complacent about the potential impact of these programs. Those of us who hold office in America have a responsibility to our Constitution, and while I was confident in the integrity of those who lead our intelligence community, it was clear to me in observing our intelligence operations on a regular basis that changes in our technological capabilities were raising new questions about the privacy safeguards currently in place.

Moreover, after an extended review of our use of drones in the fight against terrorist networks, I believed a fresh examination of our surveillance programs was a necessary next step in our effort to get off the open-ended war footing that we’ve maintained since 9/11. And for these reasons, I indicated in a speech at the National Defense University last May that we needed a more robust public discussion about the balance between security and liberty. Of course, what I did not know at the time is that within weeks of my speech, an avalanche of unauthorized disclosures would spark controversies at home and abroad that have continued to this day.

And given the fact of an open investigation, I’m not going to dwell on Mr. Snowden’s actions or his motivations; I will say that our nation’s defense depends in part on the fidelity of those entrusted with our nation’s secrets. If any individual who objects to government policy can take it into their own hands to publicly disclose classified information, then we will not be able to keep our people safe, or conduct foreign policy. Moreover, the sensational way in which these disclosures have come out has often shed more heat than light, while revealing methods to our adversaries that could impact our operations in ways that we may not fully understand for years to come.

Regardless of how we got here, though, the task before us now is greater than simply repairing the damage done to our operations or preventing more disclosures from taking place in the future. Instead, we have to make some important decisions about how to protect ourselves and sustain our leadership in the world, while upholding the civil liberties and privacy protections that our ideals and our Constitution require. We need to do so not only because it is right, but because the challenges posed by threats like terrorism and proliferation and cyber-attacks are not going away any time soon. They are going to continue to be a major problem. And for our intelligence community to be effective over the long haul, we must maintain the trust of the American people, and people around the world.

This effort will not be completed overnight, and given the pace of technological change, we shouldn’t expect this to be the last time America has this debate. But I want the American people to know that the work has begun. Over the last six months, I created an outside Review Group on Intelligence and Communications Technologies to make recommendations for reform. I consulted with the Privacy and Civil Liberties Oversight Board, created by Congress. I’ve listened to foreign partners, privacy advocates, and industry leaders. My administration has spent countless hours considering how to approach intelligence in this era of diffuse threats and technological revolution. So before outlining specific changes that I’ve ordered, let me make a few broad observations that have emerged from this process.

First, everyone who has looked at these problems, including skeptics of existing programs, recognizes that we have real enemies and threats, and that intelligence serves a vital role in confronting them. We cannot prevent terrorist attacks or cyber threats without some capability to penetrate digital communications — whether it’s to unravel a terrorist plot; to intercept malware that targets a stock exchange; to make sure air traffic control systems are not compromised; or to ensure that hackers do not empty your bank accounts. We are expected to protect the American people; that requires us to have capabilities in this field.

Moreover, we cannot unilaterally disarm our intelligence agencies. There is a reason why BlackBerrys and iPhones are not allowed in the White House Situation Room. We know that the intelligence services of other countries — including some who feign surprise over the Snowden disclosures — are constantly probing our government and private sector networks, and accelerating programs to listen to our conversations, and intercept our emails, and compromise our systems. We know that.

Meanwhile, a number of countries, including some who have loudly criticized the NSA, privately acknowledge that America has special responsibilities as the world’s only superpower; that our intelligence capabilities are critical to meeting these responsibilities, and that they themselves have relied on the information we obtain to protect their own people.

Second, just as ardent civil libertarians recognize the need for robust intelligence capabilities, those with responsibilities for our national security readily acknowledge the potential for abuse as intelligence capabilities advance and more and more private information is digitized. After all, the folks at NSA and other intelligence agencies are our neighbors. They’re our friends and family. They’ve got electronic bank and medical records like everybody else. They have kids on Facebook and Instagram, and they know, more than most of us, the vulnerabilities to privacy that exist in a world where transactions are recorded, and emails and text and messages are stored, and even our movements can increasingly be tracked through the GPS on our phones.

Third, there was a recognition by all who participated in these reviews that the challenges to our privacy do not come from government alone. Corporations of all shapes and sizes track what you buy, store and analyze our data, and use it for commercial purposes; that’s how those targeted ads pop up on your computer and your smartphone periodically. But all of us understand that the standards for government surveillance must be higher. Given the unique power of the state, it is not enough for leaders to say: Trust us, we won’t abuse the data we collect. For history has too many examples when that trust has been breached. Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power; it depends on the law to constrain those in power.

I make these observations to underscore that the basic values of most Americans when it comes to questions of surveillance and privacy converge a lot more than the crude characterizations that have emerged over the last several months. Those who are troubled by our existing programs are not interested in repeating the tragedy of 9/11, and those who defend these programs are not dismissive of civil liberties.

The challenge is getting the details right, and that is not simple. In fact, during the course of our review, I have often reminded myself I would not be where I am today were it not for the courage of dissidents like Dr. King, who were spied upon by their own government. And as President, a President who looks at intelligence every morning, I also can’t help but be reminded that America must be vigilant in the face of threats.

Fortunately, by focusing on facts and specifics rather than speculation and hypotheticals, this review process has given me — and hopefully the American people — some clear direction for change. And today, I can announce a series of concrete and substantial reforms that my administration intends to adopt administratively or will seek to codify with Congress.

First, I have approved a new presidential directive for our signals intelligence activities both at home and abroad. This guidance will strengthen executive branch oversight of our intelligence activities. It will ensure that we take into account our security requirements, but also our alliances; our trade and investment relationships, including the concerns of American companies; and our commitment to privacy and basic liberties. And we will review decisions about intelligence priorities and sensitive targets on an annual basis so that our actions are regularly scrutinized by my senior national security team.

Second, we will reform programs and procedures in place to provide greater transparency to our surveillance activities, and fortify the safeguards that protect the privacy of U.S. persons. Since we began this review, including information being released today, we have declassified over 40 opinions and orders of the Foreign Intelligence Surveillance Court, which provides judicial review of some of our most sensitive intelligence activities — including the Section 702 program targeting foreign individuals overseas, and the Section 215 telephone metadata program.

And going forward, I’m directing the Director of National Intelligence, in consultation with the Attorney General, to annually review for the purposes of declassification any future opinions of the court with broad privacy implications, and to report to me and to Congress on these efforts. To ensure that the court hears a broader range of privacy perspectives, I am also calling on Congress to authorize the establishment of a panel of advocates from outside government to provide an independent voice in significant cases before the Foreign Intelligence Surveillance Court.

Third, we will provide additional protections for activities conducted under Section 702, which allows the government to intercept the communications of foreign targets overseas who have information that’s important for our national security. Specifically, I am asking the Attorney General and DNI to institute reforms that place additional restrictions on government’s ability to retain, search, and use in criminal cases communications between Americans and foreign citizens incidentally collected under Section 702.

Fourth, in investigating threats, the FBI also relies on what’s called national security letters, which can require companies to provide specific and limited information to the government without disclosing the orders to the subject of the investigation. These are cases in which it’s important that the subject of the investigation, such as a possible terrorist or spy, isn’t tipped off. But we can and should be more transparent in how government uses this authority.

I have therefore directed the Attorney General to amend how we use national security letters so that this secrecy will not be indefinite, so that it will terminate within a fixed time unless the government demonstrates a real need for further secrecy. We will also enable communications providers to make public more information than ever before about the orders that they have received to provide data to the government.

This brings me to the program that has generated the most controversy these past few months — the bulk collection of telephone records under Section 215. Let me repeat what I said when this story first broke: This program does not involve the content of phone calls, or the names of people making calls. Instead, it provides a record of phone numbers and the times and lengths of calls — metadata that can be queried if and when we have a reasonable suspicion that a particular number is linked to a terrorist organization.

Why is this necessary? The program grew out of a desire to address a gap identified after 9/11. One of the 9/11 hijackers — Khalid al-Mihdhar — made a phone call from San Diego to a known al Qaeda safe-house in Yemen. NSA saw that call, but it could not see that the call was coming from an individual already in the United States. The telephone metadata program under Section 215 was designed to map the communications of terrorists so we can see who they may be in contact with as quickly as possible. And this capability could also prove valuable in a crisis. For example, if a bomb goes off in one of our cities and law enforcement is racing to determine whether a network is poised to conduct additional attacks, time is of the essence. Being able to quickly review phone connections to assess whether a network exists is critical to that effort.

In sum, the program does not involve the NSA examining the phone records of ordinary Americans. Rather, it consolidates these records into a database that the government can query if it has a specific lead — a consolidation of phone records that the companies already retained for business purposes. The review group turned up no indication that this database has been intentionally abused. And I believe it is important that the capability that this program is designed to meet is preserved.

Having said that, I believe critics are right to point out that without proper safeguards, this type of program could be used to yield more information about our private lives, and open the door to more intrusive bulk collection programs in the future. They’re also right to point out that although the telephone bulk collection program was subject to oversight by the Foreign Intelligence Surveillance Court and has been reauthorized repeatedly by Congress, it has never been subject to vigorous public debate.

For all these reasons, I believe we need a new approach. I am therefore ordering a transition that will end the Section 215 bulk metadata program as it currently exists, and establish a mechanism that preserves the capabilities we need without the government holding this bulk metadata.

This will not be simple. The review group recommended that our current approach be replaced by one in which the providers or a third party retain the bulk records, with government accessing information as needed. Both of these options pose difficult problems. Relying solely on the records of multiple providers, for example, could require companies to alter their procedures in ways that raise new privacy concerns. On the other hand, any third party maintaining a single, consolidated database would be carrying out what is essentially a government function but with more expense, more legal ambiguity, potentially less accountability — all of which would have a doubtful impact on increasing public confidence that their privacy is being protected.

During the review process, some suggested that we may also be able to preserve the capabilities we need through a combination of existing authorities, better information sharing, and recent technological advances. But more work needs to be done to determine exactly how this system might work.

Because of the challenges involved, I’ve ordered that the transition away from the existing program will proceed in two steps. Effective immediately, we will only pursue phone calls that are two steps removed from a number associated with a terrorist organization instead of the current three. And I have directed the Attorney General to work with the Foreign Intelligence Surveillance Court so that during this transition period, the database can be queried only after a judicial finding or in the case of a true emergency.

Next, step two, I have instructed the intelligence community and the Attorney General to use this transition period to develop options for a new approach that can match the capabilities and fill the gaps that the Section 215 program was designed to address without the government holding this metadata itself. They will report back to me with options for alternative approaches before the program comes up for reauthorization on March 28th. And during this period, I will consult with the relevant committees in Congress to seek their views, and then seek congressional authorization for the new program as needed.

Now, the reforms I’m proposing today should give the American people greater confidence that their rights are being protected, even as our intelligence and law enforcement agencies maintain the tools they need to keep us safe. And I recognize that there are additional issues that require further debate. For example, some who participated in our review, as well as some members of Congress, would like to see more sweeping reforms to the use of national security letters so that we have to go to a judge each time before issuing these requests. Here, I have concerns that we should not set a standard for terrorism investigations that is higher than those involved in investigating an ordinary crime. But I agree that greater oversight on the use of these letters may be appropriate, and I’m prepared to work with Congress on this issue.

There are also those who would like to see different changes to the FISA Court than the ones I’ve proposed. On all these issues, I am open to working with Congress to ensure that we build a broad consensus for how to move forward, and I’m confident that we can shape an approach that meets our security needs while upholding the civil liberties of every American.

Let me now turn to the separate set of concerns that have been raised overseas, and focus on America’s approach to intelligence collection abroad. As I’ve indicated, the United States has unique responsibilities when it comes to intelligence collection. Our capabilities help protect not only our nation, but our friends and our allies, as well. But our efforts will only be effective if ordinary citizens in other countries have confidence that the United States respects their privacy, too. And the leaders of our close friends and allies deserve to know that if I want to know what they think about an issue, I’ll pick up the phone and call them, rather than turning to surveillance. In other words, just as we balance security and privacy at home, our global leadership demands that we balance our security requirements against our need to maintain the trust and cooperation among people and leaders around the world.

For that reason, the new presidential directive that I’ve issued today will clearly prescribe what we do, and do not do, when it comes to our overseas surveillance. To begin with, the directive makes clear that the United States only uses signals intelligence for legitimate national security purposes, and not for the purpose of indiscriminately reviewing the emails or phone calls of ordinary folks. I’ve also made it clear that the United States does not collect intelligence to suppress criticism or dissent, nor do we collect intelligence to disadvantage people on the basis of their ethnicity, or race, or gender, or sexual orientation, or religious beliefs. We do not collect intelligence to provide a competitive advantage to U.S. companies or U.S. commercial sectors.

And in terms of our bulk collection of signals intelligence, U.S. intelligence agencies will only use such data to meet specific security requirements: counterintelligence, counterterrorism, counter-proliferation, cybersecurity, force protection for our troops and our allies, and combating transnational crime, including sanctions evasion.

In this directive, I have taken the unprecedented step of extending certain protections that we have for the American people to people overseas. I’ve directed the DNI, in consultation with the Attorney General, to develop these safeguards, which will limit the duration that we can hold personal information, while also restricting the use of this information.

The bottom line is that people around the world, regardless of their nationality, should know that the United States is not spying on ordinary people who don’t threaten our national security, and that we take their privacy concerns into account in our policies and procedures. This applies to foreign leaders as well. Given the understandable attention that this issue has received, I have made clear to the intelligence community that unless there is a compelling national security purpose, we will not monitor the communications of heads of state and government of our close friends and allies. And I’ve instructed my national security team, as well as the intelligence community, to work with foreign counterparts to deepen our coordination and cooperation in ways that rebuild trust going forward.

Now let me be clear: Our intelligence agencies will continue to gather information about the intentions of governments — as opposed to ordinary citizens — around the world, in the same way that the intelligence services of every other nation does. We will not apologize simply because our services may be more effective. But heads of state and government with whom we work closely, and on whose cooperation we depend, should feel confident that we are treating them as real partners. And the changes I’ve ordered do just that.

Finally, to make sure that we follow through on all these reforms, I am making some important changes to how our government is organized. The State Department will designate a senior officer to coordinate our diplomacy on issues related to technology and signals intelligence. We will appoint a senior official at the White House to implement the new privacy safeguards that I have announced today. I will devote the resources to centralize and improve the process we use to handle foreign requests for legal assistance, keeping our high standards for privacy while helping foreign partners fight crime and terrorism.

I have also asked my counselor, John Podesta, to lead a comprehensive review of big data and privacy. And this group will consist of government officials who, along with the President’s Council of Advisors on Science and Technology, will reach out to privacy experts, technologists and business leaders, and look how the challenges inherent in big data are being confronted by both the public and private sectors; whether we can forge international norms on how to manage this data; and how we can continue to promote the free flow of information in ways that are consistent with both privacy and security.

For ultimately, what’s at stake in this debate goes far beyond a few months of headlines, or passing tensions in our foreign policy. When you cut through the noise, what’s really at stake is how we remain true to who we are in a world that is remaking itself at dizzying speed. Whether it’s the ability of individuals to communicate ideas; to access information that would have once filled every great library in every country in the world; or to forge bonds with people on other sides of the globe, technology is remaking what is possible for individuals, and for institutions, and for the international order. So while the reforms that I have announced will point us in a new direction, I am mindful that more work will be needed in the future.

One thing I’m certain of: This debate will make us stronger. And I also know that in this time of change, the United States of America will have to lead. It may seem sometimes that America is being held to a different standard. And I’ll admit the readiness of some to assume the worst motives by our government can be frustrating. No one expects China to have an open debate about their surveillance programs, or Russia to take privacy concerns of citizens in other places into account. But let’s remember: We are held to a different standard precisely because we have been at the forefront of defending personal privacy and human dignity.

As the nation that developed the Internet, the world expects us to ensure that the digital revolution works as a tool for individual empowerment, not government control. Having faced down the dangers of totalitarianism and fascism and communism, the world expects us to stand up for the principle that every person has the right to think and write and form relationships freely — because individual freedom is the wellspring of human progress.

Those values make us who we are. And because of the strength of our own democracy, we should not shy away from high expectations. For more than two centuries, our Constitution has weathered every type of change because we have been willing to defend it, and because we have been willing to question the actions that have been taken in its defense. Today is no different. I believe we can meet high expectations. Together, let us chart a way forward that secures the life of our nation while preserving the liberties that make our nation worth fighting for.

Thank you. God bless you. May God bless the United States of America. (Applause.)

January 1, 2014

ACLU v Clapper: More complementary than conflicting?

Filed under: Intelligence and Info-Sharing,Legal Issues,Privacy and Security,Terrorist Threats & Attacks — by Philip J. Palin on January 1, 2014

Last Friday Federal District Judge William H. Pauley III released his decision in ACLU v. Clapper. Busy with post-Christmas travel and such I mostly heard the headlines.

Before reading the actual text — and overly influenced by those headlines — I intended to post today on the divergence of Judge Pauley from Judge Leon’s Klayman v Obama decision (see prior post).

But when I finally read the actual text of the decision, this non-lawyer finds significant complementarity in what Judges Leon and Pauley have decided.

Yes, Leon found bulk collection of meta-data to be illegal, while Pauley found the same practice legal.  But decisions (lawyerly or not) are often as icebergs where most of the weight is found below the surface.

In their analysis of what is being done by the US intelligence community and the potential implications for liberty, the two decisions seem to me to reach somewhat similar judgments. But Leon perceives innate abuse where, in the particular case before him, Pauley sees and hears mostly prospective rather than actual harm.

Again, you should read the original — which can be downloaded here — but to support my reading and entice you to read more, here is the opening of the Pauley decision, the bold highlights are my own:

The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda.

Prior to the September 11th attacks, the National Security Agency (“NSA”) intercepted seven calls made by hijacker Khalid al-Mihdhar, who was living in San Diego, California, to an al-Qaeda safe house in Yemen. The NSA intercepted those calls using overseas signals intelligence capabilities that could not capture al-Mihdhar’s telephone number identifier.

Without that identifier, NSA analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States. Telephony metadata would have furnished the missing infonnation and might have permitted the.NSA to notify the Federal Bureau of lnvestigation (“FBI”) of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States.

The Government learned from its mistake and adapted to confront a new enemy: a terror network capable of orchestrating attacks across the world. It launched a number of counter-measures, including a bulk telephony metadata collection program-a wide net that could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data.

This blunt tool only works because it collects everything. Such a program, if unchecked, imperils the civil liberties of every citizen. Each time someone in the United States makes or receives a telephone call, the telecommunications provider makes a record of when, and to what telephone number the call was placed, and how long it lasted. The NSA collects that telephony metadata. If plumbed, such data can reveal a rich profile of every individual as well as a comprehensive record of people’s associations with one another.

The natural tension between protecting the nation and preserving civil liberty is squarely presented by the Government’s bulk telephony metadata collection program. Edward Snowden’s unauthorized disclosure of Foreign Intelligence Surveillance Court (“FISC”) orders has provoked a public debate and this litigation. While robust discussions are underway across the nation, in Congress, and at the White House, the question for this Court is whether the Government’s bulk telephony metadata program is lawful. This Court finds it is. But the question of whether that program should be conducted is for the other two coordinate branches of Government to decide.

Legality, efficacy, and wisdom are three quite different standards. They may — or may not — overlap.

December 19, 2013

Klayman v Obama

Filed under: Intelligence and Info-Sharing,Legal Issues,Privacy and Security,Terrorist Threats & Attacks — by Philip J. Palin on December 19, 2013

Many of the issues we have previously discussed in terms of balancing liberty and security are taken up in Monday’s decision by a federal district judge to grant a Motion for Preliminary Injunction regarding bulk collection of meta-data by the National Security Agency.

Among most legally-trained commentators, there seems to be a consensus the district court’s injunction will be overturned by the US Court of Appeals, based largely on the Supreme Court’s previous decision in Smith v Maryland where no reasonable expectation of privacy was extended to the telephone numbers we choose to dial.

Judge Richard Leon probably also expects his decision to be overturned at the appellate level.  His opinion is written, it seems to this non-lawyer, more for the benefit of the Supreme Court than as a matter of conforming with the details of current law.  Indeed, the Judge stayed his own order “in view of the national security interests at stake in this case and the novelty of the constitutional issues involved.” (My italics)

As regular readers might imagine, I am sorely tempted to opine on what the judge wrote.  I spent (too) much of Tuesday reading and re-reading the sixty -eight page decision.  I agree with most of what I read and while the government’s argument may still prevail I am grateful Judge Leon has teed-up the issues so well.

But in this instance I will exercise more restraint than usual and not share with you my favorite bits.  If you have cause to read Homeland Security Watch you really owe it to yourself — your life, fortune, sacred honor and posterity — to read the full opinion and order. Please find it here:  Klayman v Obama

Judge Leon has written the clearest non-technical description I have read of what the NSA has actually been doing.  His statement of facts places these actions in their full legal context. Some important operational judgments are offered.  His footnotes are especially insightful and trenchant.  Whatever your angle on this issue, this is an original text worth your time and careful attention.  Get it, read it, and reflect.

–+–

Almost a month earlier than previously promised (gosh, I wonder why?), Wednesday afternoon the White House released the Report and Recommendations of The President’s Review Group on Intelligence and Communications Technologies.   Including appendices the full report is 308 pages long.  I have not yet mastered the text.  Eventually we should try to compare and contrast Judge Leon’s text with this one.  It is entitled, “Liberty and Security in a Changing World.”

December 12, 2013

Five surveillance principles proposed

Filed under: Intelligence and Info-Sharing,Privacy and Security,Private Sector — by Philip J. Palin on December 12, 2013

Several leading technology companies have called on world governments — and especially the US government — to abide by five principles when engaging in information surveillance:

1.  Limiting Governments’ Authority to Collect Users’ Information

Governments should codify sensible limitations on their ability to compel service providers to disclose user data that balance their need for the data in limited circumstances, users’ reasonable privacy interests, and the impact on trust in the Internet. In addition, governments should limit surveillance to specific, known users for lawful purposes, and should not undertake bulk data collection of Internet communications.

2. Oversight and Accountability

Intelligence agencies seeking to collect or compel the production of information should do so under a clear legal framework in which executive powers are subject to strong checks and balances. Reviewing courts should be independent and include an adversarial process, and governments should allow important rulings of law to be made public in a timely manner so that the courts are accountable to an informed citizenry.

3.  Transparency About Government Demands

Transparency is essential to a debate over governments’ surveillance powers and the scope of programs that are administered under those powers. Governments should allow companies to publish the number and nature of government demands for user information. In addition, governments should also promptly disclose this data publicly.

4. Respecting the Free Flow of Information

The ability of data to flow or be accessed across borders is essential to a robust 21st century global economy. Governments should permit the transfer of data and should not inhibit access by companies or individuals to lawfully available information that is stored outside of the country. Governments should not require service providers to locate infrastructure within a country’s borders or operate locally.

5.  Avoiding Conflicts Among Governments

In order to avoid conflicting laws, there should be a robust, principled, and transparent framework to govern lawful requests for data across jurisdictions, such as improved mutual legal assistance treaty — or “MLAT” — processes. Where the laws of one jurisdiction conflict with the laws of another, it is incumbent upon governments to work together to resolve the conflict.

More background on this initiative and the guidelines can be found at reformgovernmentsurveillance.com

Eric Snowden’s exposure of National Security Agency practice has reminded me of a now quarter-century old critique of US intelligence practices by a British pal.  He commented that even the old rifle versus shotgun analogy did not capture the difference between US intelligence gathering and behavior by other spy agencies. “A shot-gun still requires some rough targeting.  US intelligence is more like a gas attack, wafting wherever the wind blows.”

My British colleague explained the difference as a matter of resources and especially budget.  ”We have to choose our targets carefully.  The US has the money, men, and machines to spend billions on blind alleys.”

In this new century we have women and even better machines.  The so-called “black budget” also found in the Snowden leaks suggests the NSA spends about $10.5 billion per year, roughly 20 percent of the overall federal intelligence budget.  The British government spends about $3.2 billion on its overall intelligence operations.

–+–

I look forward to a great future for America – a future in which our country will match its military strength with our moral restraint, its wealth with our wisdom, its power with our purpose. (John F. Kennedy)

August 15, 2013

A welcome Presidential invitation (but please proceed even if there are no RSVPs)

Filed under: Intelligence and Info-Sharing,Legal Issues,Privacy and Security,Terrorist Threats & Attacks — by Philip J. Palin on August 15, 2013

AUGUST 16 UPDATE: Today the Washington Post reports on several hundred incidents of the NSA failing to conform with current regulations and legal boundaries for domestic surveillance.  This is where strong action by the executive — as outlined below — is most needed and can be most effective.

ORIGINAL POST:

Friday the President used the White House press room to announce and take a few questions on proposals to better balance civil liberties with digital surveillance.

Monday the Wall Street Journal editorialized that these proposals constitute a “retreat on his core powers as Commander in Chief.”  If I understand the editorial correctly, the WSJ perceives the President has sovereign authority under Article II, Section 2 to spy on us as much as he perceives the nation’s security might require.  Judicial oversight as currently provided by the Foreign Intelligence Surveillance Act is, in their view, unconstitutional.  Any due process is, it would seem, collaboration with our enemies.

On the left hand: Writing in The Atlantic, Conor Friedersdorf conducts an eviscerating exegesis of the rather brief — even bland — Presidential statement and concludes, “Obama is still lying, obfuscating, and misleading the American people. In doing so, he is preventing representative democracy from functioning as well as it might.”   He perceives a President corrupted by power and given over to condescension, setting the stage for our liberties to be lost forever.

There are of course judgments farther to the right and left of these still recognizably reasoned opinions.  But rather quickly “right” and “left” are lost to something closer to Freudian obsessions or the deepest mysteries of Jung’s collective unconscious.  Obama becomes a token or talisman or target of spiritual warfare and whatever he says is treated like a just-discovered manuscript in a Dan Brown novel.

My take is more prosaic.  The President — like all of us — is a creature of his prior experiences.  Among these are 1) a black man with insider knowledge of white America, 2) community organizer, and 3) lawyer.

If the first prior is having any influence here, it is expressed in the President’s perpetual pragmatism.  He intends to “get ahead” (what this means specifically depends on context).  To do so he needs to be realistic about the impediments or threats he will encounter.  He is predisposed to action that mitigates or obviates knowable problems. The surveillance programs (and the drone program and much more) inherited from his predecessor are adapted, expanded, and subjected to more detailed processes.

As a community organizer he is sensitive to matching his interventions to the values, aspirations, capabilities, and readiness of those he is trying to organize.  He can facilitate, provoke, propose… but it is up to the community to choose and sustain (or not).  Fundamental issues can be teed up, but it is the community’s role  – not his — to decide.  Notice how often, including in this instance, he unveils a process that tends to turn the initiative over to others.  He will advocate for certain principles or objectives, but if and how these are adopted is really up to others.

As a lawyer President Obama is inclined to procedural solutions: a task force, a privacy advocate, checklists, reviews, appeals…  Justice Frankfurter once wrote, “The safeguards of due process of law and the equal protection of the laws summarize the history of freedom of English-speaking peoples running back to Magna Carta and reflected in the constitutional development of our people. The history of American freedom is, in no small measure, the history of procedure.”  Whether or not the President knows the quote, he regularly demonstrates his concurrent view.

As a white man I have not needed to be quite so pro-active regarding threats and impediments.  My approach to management and leadership is similar to that of a community organizer. The successes tend, I am proud to say, to be substantive and long-lasting.  But failure is much, much more common.   I am personally impatient with procedure, but as a matter of human history I agree with Frankfurter (and the President) on its important role.

There are tangible threats to the United States which surveillance can help prevent and mitigate.  There is a profound threat to our liberty that emerges from government surveillance, especially in this digitally networked era.  Procedures are, probably, the most important part of any large bureaucracy’s effort to mitigate abuse of this unprecedented surveillance capability.

In a different time or place I might, despite all my failures, still advocate for community-based engagement with these treacherous issues.  Unfortunately, in this time and place if our civil liberties are to be reasonably preserved in face of these extraordinary technical means, strong and specific Presidential action will be needed.  Legislation would be better, but I don’t think it will happen.  Community consensus would be even better, but on this issue nothing even close to consensus is possible any time soon.

It is problematic. It is paradoxical.  But a community’s strength sometimes depends on individuals to sacrifice legitimate power in order advance what is best for the community.  On Monday the Wall Street Journal editorial board complained, “Mr. Obama invited Congress to tie him and future presidents down with new oversight and limits on a surveillance program…”  It is right to extend the invitation.  It will be necessary to do even more.

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