Friday, April 11, 2014

How NSA Revelations May Lead to Even More Surveillance

Lauren Weinstein writes:

Ironically for longtime observers of NSA and other intelligence agencies, and those of us who warned early about the abuses being ensconced in the PATRIOT and Homeland Security Acts -- and were accused of being unpatriotic in return -- scarcely little in the "revelations" to date are a real surprise at all. Nor are reports of intelligence agencies weakening encryption systems anything new -- concerns about NSA influence over the Data Encryption Standard (DES), reach back about four decades....

Even before the recent NSA Commission report made its recommendations, it seemed clear that administration sentiment had shifted toward making this metadata the responsibility of the telephone and cable companies -- AT&T, Verizon, Comcast, Charter, Time Warner Cable and so on. The commission in fact also specifically recommended this -- or the use of some other "third party" organization for the purpose.

Notably, none of the major stakeholders seem to be seriously talking about no longer collecting the data at all.

This actually should not be surprising. As mentioned above, this is exactly the sort of data that has long been collected commercially anyway. And a key justification for the NSA program -- echoed by that very recent court decision -- is that (supposedly) we don’t have an expectation of privacy for our call metadata being held in such commercial third party contexts.

So, the handwriting appears increasingly clear. Pressure will rise to move the responsibility for holding this data corpus from NSA per se, back to the carriers or perhaps some ersatz independent org, but the data will still be collected. And despite calls for more limited access by NSA and other agencies , one can safely assume that whatever access they say they really, truly need for national security, they’re going to get -- one way or another. There’s simply no obvious way that there will be a real return to any actual, meaningful, truly individualized search warrant requirement (no matter how any changes are ostensibly framed to the public).

It’s this focus on "privatizing" this kind of government mandated data collection that is of especial concern.

Because while the data retention policies of Big Telecom vary widely today both by company and across a range of services (telephone and text message metadata, text message content, and so on), we can bet our bottom dollars that any move toward privatization will come complete with mandated retention periods that in many cases will exceed the time that the data is retained today.

Even more importantly, these telecom companies will almost certainly be prohibited from deciding to hold the data for shorter periods, but likely will be permitted to hold it longer if they choose, still available pretty much on demand to the government.

The truth is that this sort of government mandated telecom data retention regime has long been the wet dream of government agencies in the U.S. and around the world -- a major push in this direction has been taking place in the EU for quite some time (despite the dissembling by Europe’s leaders regarding surveillance -- the hypocrisy is palpable).

It is also not surprising that the thought of Big Telecom having control over even more of our data sends a cold chill down many observers’ spines....

So please excuse me if I can’t work up any enthusiasm for those firms or some "new third party" simply providing a new bucket into which the metadata will pour in droves.

But it gets worse.

Once these visible government mandated data retention programs are in place, the urge to expand them will be nearly irresistible.

Already, a prominent member of the NSA Commission has publicly suggested that such retention should expand to include email -- another item long on the various agencies’ wish lists around the world...

And if Big Telecom goes along (whether enthusiastically or not, voluntarily or not), pressure for expanding government-ordered data retention mandates into other sectors and players also seems very likely in the long run.

- - -

This then may be the ultimate irony in this surveillance saga. Despite the current flood of protests, recriminations, and embarrassments -- and even a bit of legal jeopardy -- intelligence services around the world (including especially NSA) may come to find that Edward Snowden’s actions, by pushing into the sunlight the programs whose very existence had long been dim, dark, or denied -- may turn out over time to be the greatest boost to domestic surveillance since the invention of the transistor.

By creating pressures for a publicly acknowledged, commercially operated, "privatized" but government mandated data collection and retention regime, the ease with which new categories of long-sought data could be added to this realm -- especially in the wake of a terrorist attack that could be used as an ostensible justification -- seems significant to say the least.

Read the rest here.

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