In Security

Do the ends justify the means? The embarrassment of a government accused of routinely tapping into phone calls covering, to say the least, millions of French, German and Spanish citizens, including elected officials and leaders at the highest level, is difficult to fathom or accept. Clearly, the United States is a justifiable target for anger if not ridicule, but even though the practices of the National Security Agency (and lots of other U.S. governmental agencies) listening, tracking, recording and watching electronic communications is way too disturbing to allow to pass without massive protests, not just those abroad, but here in the U.S., there is another side to this debacle.

So how and why did it happen? In the cold war, spies and government informers chose a place where the folks they wanted to intercept would be speaking or living. In the States, the normal procedure would be to secure a warrant, and then alligator clipped physical interceptors were applied by the relevant enforcement agency to the actual twisted pair leading to the venue’s phone lines, and for good measure, sometimes there would be a subtle break-in so microphones (cameras?) could be placed. As time passed, agents were even able to listen in from the outside, where the wall and windows cooperated, with parabolic reflectors and other sensors that could draw down sounds from far away.

Then came mobile phones, so the situs was not locked. It got more complicated when the bad guys would pick up a phone, use it once or twice and then discard (crush) the device. The Web now linked the world, from elegant fiber and satellite connectivity to old twisted pair dial-up. The bad guys learned how to hide their identity, flying into Internet cafes, never using their own computers, using specialized sites (like Tor) that allowed them to create untraceable communications. Or hijacking the computers of the innocents, converting them into bots to transmit the ugly words. Or ??????

So here are some of the problems facing government agents trying to track messages. If you don’t have a hard and identifiable source, you have to scan messages looking for patterns and signatures from those you are trying to find. It’s like having ten freight cars carrying deadly sarin gas scattered among 100,000 trains… somewhere. The e-universe doesn’t transmit perfect ineluctable electronic bursts. Each message is fractured into tiny segments that travel between and among the spaces and pauses of every other message on the road. So if you’re looking for those freight cars, you kind of have to check all of them at some level.  You’re scanning for key words, signature expressions, combing for a source and recipient. Ugly, huh?

Although Britain’s PM David Cameron supports the notion of recording it all just in case, as far as the government, any government really, is concerned, they would rather have pre-filtered and narrowly focused data… the needle, if you will, without the haystack. They really don’t want all those extraneous messages and information, but they haven’t figured out how to find only the secret communications that matter without having a whole lot of information that is none of their damned business. OK, so much for the government’s predicament, and with the United States leading the way in the technology of intercepts, clearly we the guys using those cutting edge tools the most. We are most certainly not the only ones.

But it’s not exactly like the NSA and parallel federal agencies are looking the other way when they discover “something wrong.” Up to now, it’s been stuff like the DEA letting local police know that if they make a routine traffic stop of citizen XXX, they might just find a stash of illegal narcotics off to market. Thus, the local cops can use the traffic stop as probable cause and develop a parallel case without, perhaps, using the fruit of the poisonous tree as direct evidence. To put it mildly, that practice is really questionable under the U.S. Constitution. But boy does it happen, according to insiders. And who knows how many sly chuckles are shared by government operatives looking at love notes between clandestine lovers simply because they can?

Now, whether such generically culled electronic information can be used in an actual U.S. trial of a terrorism suspect has found its way into the court system: “The U.S. Justice Department says for the first time it plans to use information gained from one of the National Security Agency’s warrantless surveillance programs against an accused terrorist, setting the stage for a likely Supreme Court test of the Obama administration’s approach to national security.

“The top court so far has turned aside challenges to the law on government surveillance, saying people who bring such lawsuits have no evidence they are being targeted. Warrantless programs mean they need no court authorization in advance.

“Jamshid Muhtorov was accused in 2012 of providing material support to the Islamic Jihad Union, an Uzbek terrorist organization that, authorities say, was engaging NATO coalition and U.S. forces in Afghanistan…According to court papers, the FBI investigated Muhtorov because of his communications with a website administrator for the IJU… In a court filing [October 25^th], the U.S. government said it intends to offer into evidence ‘information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978.’” JapanTimes.com, October 27^th.

Earlier this year, a novel approach to get that information out was applied in a murder case being tried in Florida. This time, however, it was the defendant who is claiming that such phone tapping would provide evidence of his innocence and is demanding access accordingly. “Defendant Terrance Brown is accused of participating in the 2010 murder of a Brinks security truck driver. Brown maintains his innocence, and claims cellphone location records would show he wasn't at the scene of the crime. Brown's cellphone provider — MetroPCS — couldn't produce those records during discovery because it had deleted the data already… On seeing the story in the Guardian [UK] indicating that Verizon had been ordered to turn over millions of calling records to the NSA [in May], Brown's lawyer had a novel idea: Make the NSA produce the records.” NBC.com, June 20^th. It will be for an appellate court to decide if this will fall the way Mr. Brown desires.

And while the President is stopping his government agencies from eavesdropping on specifically on allied heads of state, will that have the slightest impact on the overall combing of the electronic universe? The freight train of constitutional rights (particularly the Fourth Amendment’s ban on unreasonable searches, and the Sixth Amendment’s right to confront witness against an accused) is on the same track as the freight train of “self-defense though preventative intrusion.”

Is this going to be a balancing act for something in the middle, or does one train survive while the other is busted into smithereens. To me the biggest question of all is how much we have to stop being Americans with American values – looking more like them than us – before we simply lose the essence of who we really are? When is safety no longer worth it? We know that whatever the government tells us they are doing, they are actually doing a whole lot more! Think of life before Snowden spilled the beans. Think of how you look at the world and your private communications now.

I’m Peter Dekom, and I pray our leaders find a balance that preserves our integrity as the land of the free and the home of the brave.