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10 Myths About NSA Surveillance That Need Debunking

Focusing on the legality of Edward Snowden's actions is a distraction. Let's face the arguments of pundits and 9/11 fear-mongers to determine what's true and what's not.

| Mon Jan. 13, 2014 10:32 AM PST

This story first appeared on the TomDispatch website.

The debate Edward Snowden envisioned when he revealed the extent of National Security Agency (NSA) spying on Americans has taken a bad turn. Instead of a careful examination of what the NSA does, the legality of its actions, what risks it takes for what gains, and how effective the agency has been in its stated mission of protecting Americans, we increasingly have government officials or retired versions of the same demanding—quite literally—Snowden's head and engaging in the usual fear-mongering over 9/11. They have been aided by a chorus of pundits, columnists, and present as well as former officials offering bumper-sticker slogans like "If you have nothing to hide, you have nothing to fear," all the while claiming our freedom is in direct conflict with our security.

It's time to face these arguments directly. So here are ten myths about NSA surveillance that need debunking. Let's sort them out.

1. NSA surveillance is legal.

True, if perhaps you put "legal" in quotes. After all, so was slavery once upon a time in the US and apartheid in South Africa. Laws represent what a government and sometimes perhaps even a majority of the people want at a given point in time. They change and are changeable; what once was a potential felony in Colorado is now a tourist draw.

Laws, manipulated for terrible ends, must be challenged when they come into conflict with the fundamental principles and morals of a free society. Laws created Nelson Mandela, the terrorist (whom the US kept on its terror watch list until 2008), and laws created Nelson Mandela, the president.

There's a catch in the issue of legality and the NSA. Few of us can know just what the law is. What happens to you if you shoplift from a store or murder someone in a bar fight? The consequences of such actions are clearly codified and you can look them up. Is it legal to park over there? The rules are on a sign posted right where you'd like to pull in. If a cop tickets you wrongly, you can go to court and use that sign to defend yourself. Yet almost all of the applicable "law," when it comes to the National Security Agency and its surveillance practices, was secret until Edward Snowden began releasing his documents. Secret interpretations of the shady Patriot Act made in a secret court applied. The fact that an unknown number of legal memos and interpretations of that secret law (themselves still classified) are operative means that we really don't know what is legal anymore.

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The panel of experts appointed by President Obama to review the Snowden revelations and the NSA's actions had a peek into the issue of "legality" and promptly raised serious questions—as did one of the two federal courts that recently ruled on some aspects of the issue. If the Obama administration and the Justice Department really believe that all the NSA's activities will be proven legal in a court of law, why not allow them to be tested openly and unambiguously in public? After all, if you've done nothing illegal, then there's nothing to hide.

When Amnesty International first tried to bring such a question before the courts, the case was denied because that organization couldn't prove that it had been subject to monitoring—that was a secret, of course!—and so was denied standing even to bring the suit. Snowden's revelations seem to have changed all that. The documents made public have given "standing" to a staggering array of individuals, organizations, and countries. For the first time in 12 years, they pave the way for the issue to come to its proper venue in front of the Supremes. Openly. Publicly.

2. If I've done nothing wrong, I have nothing to hide. So why should I care about any of this?

Keep in mind that the definition of "wrong" can quickly change. And if you don't know what the actual law really is, how can you say that you know you have done nothing wrong? If you've got nothing to hide, post your social security number and credit card information online, leave your curtains open at night, and see how that sits with you.

In a larger sense, however, the very idea that "I've got nothing to hide" is a distraction. The Fourth Amendment guarantees a right to privacy. The Constitution does not ask if you want or need that right; it grants it to everyone, and demands that the government interfere with it only under specific circumstances.

The Fourth Amendment came into being because of the British use of general warrants in the colonial era. Under that "law," they could legally search whole groups of people, their possessions, and their papers without having to justify searching any specific person. Called "writs of assistance," these general warrants allowed the King's agents to search anyone, anytime, regardless of whether they suspected that person of a crime. The writs were most often used by Royal Customs agents (an irony perhaps, given the draconian powers now granted to US Customs agents to search anyone's personal electronics, including those of American citizens, at the border).

The US fought a revolution, and James Madison wrote the Fourth Amendment, against broad government authority to search. Whether you personally do or do not have anything to hide is not even a question that should be on the table. It should be almost un-American to ask it.

3. But the media says the NSA only collects my "phone metadata," so I'm safe.

My older, conservative neighbor quickly insisted that collecting this metadata thing she had heard about on Fox was necessary to protect her from all the terrorists out here in suburbia. She then vehemently disagreed that it was okay for President Obama to know whom she called and when, from where to where and for how long, or for him to know who those people called and when, and so forth.

Think of metadata as the index to all the content the NSA can sweep up. That agency is able to record, say, 24 hours worth of Verizon phone calls. Its operatives can then easily locate any particular call within that huge chunk of metadata. Such basic information can also provide geo-location information to track physical movements. Metadata showing that you called your doctor, followed by metadata about which lab department she called next, followed by a trip to the pharmacy might fall into the "something you want to hide" category. (Actually, using metadata to learn about your medical history may not be even necessary. An exception to the privacy policy of one of America's larger HMOs, Kaiser Permanente, states: "We may also disclose your PHI [personal health information] to authorized federal officials as necessary for national security and intelligence activities." BlueCross BlueShield has a similar exception as do regional medical outfits.)

Metadata is important. Ever play the game "Six Degrees of Separation"? Silly as it seems, almost anyone is indeed just six hops away from anyone else. You know a guy in Detroit who has a friend in California who has a sister who cuts hair whose client is Kevin Bacon's high school classmate's cousin. You and that cousin are connected. Publicly available information tells us that the NSA traces "three hops" from a target: A knows B, C, and D. But once C morphs into a target, C's three hops mean the NSA can poke into E, F, and G, and so forth. The Guardian calculated that if A has 50 friends, the number of targets generated under the three-hop rule would be over 1.3 million people. I really do hope that you (and everyone you know, and they know) have nothing to hide.

4. Aren't there are already checks and balances in our system to protect us against NSA overreach?

In recent years, the government has treated the king of all checks and balances, the Constitution, like a used Kleenex. The secret Foreign Intelligence and Surveillance Court (FISA) was set up to provide judicial oversight in a classified setting to the intelligence community.  Theoretically, the government is required to make a compelling case for the issuance of orders authorizing electronic and other surveillance, physical searches, and compelled production of business records. Either the government is very good at making its case, or the court has become a rubber stamp: that secret FISA court approved all 1,789 requests submitted to it in 2012.

The Patriot Act elevated a once rarely used tool, the National Security Letter (NSL), into the mainstream of government practice. National Security Letters are an extraordinary search procedure that gives the FBI the power to compel the disclosure of customer records held by banks, telephone companies, Internet service providers, public libraries, and others. These entities are prohibited, or "gagged," from telling anyone about their receipt of the NSL. Though the Justice Department itself cited abuse of the letters by the FBI in 2008, in 2012 the FBI used 15,229 National Security Letters to gather information on Americans. NSLs do not require judicial approval and the built-in gag orders prevent anyone from seeking judicial relief; indeed, most people will never even know that they were the subject of an NSL. And at the moment, the Department of Justice is trying to keep classified an 86-page court opinion that determined the government violated the spirit of federal surveillance laws and engaged in unconstitutional spying.

Director of National Intelligence James Clapper directly lied to that check-and-balance branch of the government, Congress, in a public session. (He later termed his response the "least untruthful" answer.) And we wouldn't even know that he lied, or much of anything else about the NSA's surveillance activities here or globally, if it weren't for one man's courage in exposing them. The government had kept it all from us for 12 years and never showed the slightest sign of reconsidering any part of that policy. Without Snowden, we would not even know what needs checking and balancing.

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