The Wrongologist

What’s Wrong Today:

Does anyone remember the Senate’s Church
Committee? It held hearings on the NSA, CIA and FBI in 1975. It was the precursor
to the Senate Select Committee on Intelligence. The Chairman was Sen. Frank
Church, (D-ID). He said at the time that the NSA was so secretive that almost
no Americans had ever heard of it, despite its huge employee base and enormous
budget.

At the time, the NSA had no statutory basis
and no oversight.
You can see the committee’s reports here.
 The Foreign Intelligence Surveillance
Act (FISA) and Foreign
Intelligence Surveillance Court (FISC) were inspired by the
recommendations of the Church Committee.

The
FISA Act of 1978 prescribes procedures for requesting judicial authorization
for electronic surveillance and physical search of persons engaged in espionage
or international terrorism against the United States on behalf of a foreign
power. Requests are adjudicated by the FISC, a special eleven member court.

Today,
the FISC oversees requests for surveillance warrants
of suspected foreign intelligence agents inside the United States by federal
police agencies.

Outside
the Beltway’s Matt
Bernius:

Bernius took
the numbers from the Federation of American Scientists archive of those US
Attorney General’s Annual FISA Reports to Congress and crunched them into a
spreadsheet so we could see for ourselves how well the courts are doing:

Starting
in 2005, the Attorney General was also required to report on FISA applications
for Business Records. These involve accessing large amounts of data. Bernius:

In 2005,
the Justice Department began to include information about requests for information about US citizens in the annual
FISA Reports. From 2005 to 2012, there were
53,593 such requests made by the FBI. In 2008 alone, 22.7% of those requests were later
determined to be for the wrong person’s information.

The
Justice Department only released information about the number of corrective
requests in 2007 and 2008. These requests are sought in cases where the
government discovered that they pulled information for the wrong “John Smith.”
There is apparently no requirement for correction information to be reported.

Since in 20+%
of the cases in 2008, the FBI pulled info for the wrong person, it would be
nice to know if things have gotten any better or any worse. All of the
following charts come from Bernius.

FISA Surveillance Requests (1979 –
2000):

In
21 years, only a single application (in 1997) was denied. The government chose
to withdraw that application rather than amending it.

2000 was the first year in which FISA
applications exceeded 1000. It also marked the first year in which the FISA
court chose to modify an application.

FISA Surveillance Requests (2000 – 2012):

From 2000 to 2012, the FISA court denied 12
applications out of 21,914, and modified another 2%, or 498. The
government withdrew a total of 26 applications.

Bernius:

The FISA courts deal with more than just
applications for individual surveillance. Starting in 2005, the Attorney
General was also required to report on FISA applications for Business Records:

In recent years, the number of these
requests has significantly grown. While the FISA courts have approved 100% of
the applications, a far greater amount of push-back and modification happened
compared to the surveillance applications. In part this may be because these
are requests for far larger amounts of data.

Thanks to provisions in the re-approved Patriot
Act, the Justice Department also began to include information about requests
for information about US citizens in the annual FISA Reports:

According to the Electronic Privacy
Information Center, these applications give the FBI the power to compel the
disclosure of customer records held by banks, telephone companies, Internet
Service Providers, and others. These entities are prohibited, or “gagged,” from
telling anyone about their receipt of the National Security Letter (NSL), which
makes oversight difficult.

The numbers for 2005 to 2008 are
“good-faith” estimates since there was no unified system in place for tracking
NSL requests. A tracking system for these data came online in 2009.

From 1979 to 2012, there were 33,996
FISA applications for individual surveillance. Only 13 were denied.

We are back at the same point today as we
were at the time of the Church Committee hearings: The government wants to have
certain capabilities, but those capabilities run up against our constitutional
right to be free from unreasonable searches and our right to privacy.

At the same time, the effectiveness of
certain programs still relies in part on the enemy not knowing what we’re
capable of doing. That creates a
conundrum, because if the enemy can’t know, then who can know? Congress? The President? Glen Greenwald?

We expect that there will be a tension between the
need for the American public to know and approve of what the government is
doing and the need to keep our adversaries from knowing what we are capable of
doing.  

The biggest problem with the current system (as
best we understand it) is that its “big data” correlation conceit hides the
needles under way too much hay. That can generate false positives that are
treated by law enforcement as positive provable evidence. It also can generate false
negatives, or has enough missing information not to be terribly useful in
preventing imminent threats.  

NSA
might start by assuming that the potential set of terrorists is substantially
less than 7 billion people.

Authoritarian systems are the brittle and often
collapse the fastest. The current NSA debate provides an opportunity for improved government transparency and trust by the people.

That could be
transformative.  

Will Congress and the White House take it?