Arik Hesseldahl

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Guardian Editors Debate a Former NSA Lawyer on PRISM, Snowden and Surveillance

NSA-Logomag380Last night, I attended a pretty good debate in New York about the surveillance by the National Security Agency, PRISM, Edward Snowden, and exactly how outraged people should be.

The participants were two editors from The Guardian, the U.K.-based newspaper that has been breaking a lot of news based on Snowden’s disclosures. Alan Rusbridger is The Guardian’s editor, and Janine Gibson is editor of its U.S. operation.

Defending the NSA was Stewart Baker, a former general counsel at the NSA, who is now a partner at the law firm of Steptoe & Johnson. TV host Charlie Rose was the moderator, and it’s my understanding that the debate will be presented on his show soon.

I thought I’d share a few highlights:

There were two portions of the discussion. Some of the exchange focused less on the issue of the role of surveillance in a civil society and more on questions about how that society can even begin to have a realistic and informed debate about it in the first place. For example, if Congress were to make a law imposing limits on surveillance, it stands to reason that the bad guys who would be the targets of that surveillance would just work outside the limits of those laws.

Early on, Baker made a thought-provoking point: “Doing something through legislation requires that you have an open debate about exactly what limits you’re imposing. But if you’re going to have an open debate about what limits you’re imposing, you’re going to have to talk a lot about your capabilities. And the difficulty we have had engaging in intelligence under law has been that the debate has gradually revealed more and more of sources and methods, to the point that it’s not clear that we have intelligence under law because we can’t gather that much intelligence due to the loss of our sources and methods. … You have to ask yourself, if I were a target of intelligence, what could I learn from the disclosures to this point? And almost every one of these disclosures allows you to avoid the intelligence-gathering if you’re a target.”

For example, he said, the disclosures from Snowden have revealed that the NSA has stricter rules when it appears that the communications being monitored may be between someone and their lawyer, making them legally privileged. A potential target would therefore either make a point of communicating with a lawyer a lot, or make it look like they’re doing so.

Later on, Rusbridger cited former NSA head Gen. Michael Hayden, saying that, “of course when you discuss these things openly, you are giving things away to the bad guys.” But he also said that you have to have this debate. “But you can’t have the debate in a vacuum. It has to be based on information, and so there is a trade-off.”

Privacy and security are both public interests, Rusbridger said. “The question is, where is the meeting place where those public interests can be debated?” In Britain, there has been no parliamentary debate on any of this, he said. “It may be, in the end, that Americans and the British and Germans decide that they’re willing to sacrifice some amount of liberty for some amount of security, but you can’t rely on that consent until a certain amount of information has been brought into the public domain. And some of that information may warn the bad guys off, but hey, it’s a democracy, and we like democracy.”

Both sides wrestled a bit with the notion of metadata. That’s the information about calls and emails that the NSA has been gathering, but not the calls and emails themselves. Baker said that, in another era, metadata was known as “billing records,” and have always been targeted by law enforcement agencies. “Billing records have been collected by police since billing records have existed, about 100 years ago,” he said. “The idea that because you call it metadata, and that makes it a threat to personal privacy, is, to me, odd.”

Gibson shot back that metadata is a lot more than billing records: “It’s where you are, what you did, where you went, who you spoke to, who every person that you spoke to spoke to. It’s every field in your email. It’s how long your email was. It’s key words from your email. It’s the subject line.”

She went on to worry that the younger generation of people who so eagerly join social media sites like Facebook and Twitter haven’t fully grasped how little privacy they have. “The generation that is currently living their entire lives digitally, where everything is online and in the cloud and open, I’m not sure that generation realizes that they are giving their consent to their wholesale collection and storage.” Those people aren’t being represented in congressional committees or in the courts, she said.

Baker retorted: “These are the very same people who are flocking to social media and giving this data up. … If you give this data up, the likelihood that it will be used is high. You can’t say that people are worried about privacy if they’re giving this data away in mass quantities. So you want oversight by 17-year-olds? Would that be true oversight?”

There were a lot of good questions from the audience, but I’ll focus on just one, mainly because of the person asking it (and it really wasn’t a question). It came from Ken Roth, the executive director of Human Rights Watch, an organization that has lately been staking out some positions on the surveillance issue.

Roth was once a prosecutor, and said that he routinely dealt with metadata in the course of that job. “I collected metadata, but the problem was, I had to process it by hand. I targeted individuals where I had a reasonable suspicion that they were doing something wrong. Today, because of the technological advances by governments, it’s possible to review anyone’s lives. … Today, the government has the capability to look at our lives without any reasonable suspicion, without any targeting, which is completely different from when the law was adopted. The Supreme Court has basically warned government that times have changed, and so the rules have to change, too. That was the Jones case of last year. So far, Obama hasn’t changed.”

Baker’s response: “Flash. This just in. Government has computers, too. This is the world we live in. Access to data is getting cheaper all the time. This is the model that technology and social media companies are built on. This is also true of government, and it’s going to do the same thing.”

All this occurred within the first half hour of the debate. No one’s views really changed, but it was an enlightening talk. When the video is available, it will be worth a watch.

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I think the NSA has a job to do and we need the NSA. But as (physicist) Robert Oppenheimer said, “When you see something that is technically sweet, you go ahead and do it and argue about what to do about it only after you’ve had your technical success. That is the way it was with the atomic bomb.”

— Phil Zimmerman, PGP inventor and Silent Circle co-founder, in an interview with Om Malik