More NSA: Data Mining or Packet Sniffing?
Orin Kerr has become an extremely valuable resource on the NSA eavesdropping story. Based on his initial perusal of the James Risen book ‘State of War
It helps to note a distinction between two different methods that the press (and some commentators) often jumble together: packet-sniffing on a packet-switched network, and data mining. Packet sniffing refers to installing a monitoring device on a steam of traffic that looks for specific sequences of letters, numbers, or symbols. Here is how I explained packet sniffing for Internet traffic in my article, Internet Surveillance Law After the USA Patriot Act:
While the Internet uses packets to send and receive information, the packets are really just digital ones and zeroes that computers use to communicate with each other. The ones and zeroes can be reassembled into text to be read by a human, but computers do not need to do this and generally will not. A computer surveillance tool programmed to look for all emails to the Internet account “bob@aol.com” does not actually look for the text “bob@aol.com.” To simplify a bit, the tool instead begins by looking for emails, and when it finds an email, it scans the right place in the email for the digital equivalent of “bob@aol.com,” which is 0110001001101111011000100100000001100001. If this exact sequence of ones and zeros appears in the right place, the surveillance tool knows that it has found an email to bob@aol.com and will copy and record the block of ones and zeros that represent the email so that someone can later come back, convert the ones and zeros into text, and read the email. If the tool has an advanced filter and is configured properly, the billions of ones and zeros that do not relate to emails or to the exact sequence of 0s and 1s that represent the target account will pass through the device and be forgotten.
Based on what I have read from Risen’s book, it sounds to me like that’s what the NSA was doing. For those with criminal law experience, this was basically a large-scale pen register / trap-and-trace or wiretap, depending on how the filters are configured.
Read the rest of Volokh’s excellent post, including a short discussion of why this might give more credence to Bush’s claim that the disclosure of the program was a blow to national security.
Meanwhile, the always-resourceful Tom Maguire steps down in Timesworld and examines the claim that somehow the administration has to offer proof that national security was compromised:
Now the Administration has to prove that national security was damaged before they criticize the Times? Maybe the Admin should simply release some details of exactly which programs were compromised so the Times can front-page that – this just gets better and better.
Lest you think the MinuteMan is just after men of straw, that was in response to this editorial from the paper of record:
When the government does not want the public to know what it is doing, it often cites national security as the reason for secrecy. The nation’s safety is obviously a most serious issue, but that very fact has caused this administration and many others to use it as a catchall for any matter it wants to keep secret, even if the underlying reason for the secrecy is to prevent embarrassment to the White House. The White House has yet to show that national security was harmed by the report on electronic spying, which did not reveal the existence of such surveillance – only how it was being done in a way that seems outside the law.
Forget the imperial presidency – Pinch is the imperial publisher…
Yes, but the Emperor has no clothes, as we can easily deduce from their plummeting financial performance (look at EBITDA) over the past few years. Watch for their next move to start rearranging the deck chairs while the ship continues to take on more water…
The excerpt from today’s Times is taken out of context. The point of the editorial is that the public clearly has a right to know when the government is doing things which apparently are illegal, while those who hold power will obscure illegal or embarrassing events from the public for obvious reasons. National Security will often be used as a fig leaf to avoid prying eyes. The Times’s point that the Bush administration (nor anyone else, to my knowledge) has yet to argue why the reporting on administration’s ignoring of FISA requirements has any impact on national security. The media have the responsibility to inform the public – if the Times did not print the story, they would not be doing their job. Nothing imperial about that.
As for the Times’s financial performance: there are a lot of reason why the newspaper business is suffering (rising costs of paper and ink, the evisceration of the classified business by Craig’s List, migration of ad dollars to the Internet, etc.). This affects all newspapers, not just the Times (e.g., Knight Ridder is on the block, Tribune is bleeding money, etc.). To suggest that the Times is altering its reporting or its editorials to sell more papers is silly.
peter, if the Times is not altering its reporting or its editorials to sell more papers, they deserve to go out of business – the Times is not the protector of the public interest, they are a business concern. My point is not that they want to sell papers – it is that news outlets are just as quick to yell ‘The public has a right to know’ as the government is to yell ‘national security’. I’ve got no particular reason to trust the Times; they, like the administration, are human and subject to the same pressures as you and I – or have we so quickly forgotten Jayson Blair?…
Peter,
The things the Times has revealed have not been shown to be illegal as yet. Even the FISA court has said the President has the right to warrantless searches when it involves National Security.
So long as the conditions President Bush indicated exist (1) Know Terrorists communications, (2) One end of the communication is outside the US and (3) Congressional Intel Committees were kept informed why is it illegal. Or do you really mean that a terrorist in the US is free to plan 9-11 type destruction just because there is not enough specific information to get a warrant?
Remember the Constitution says “unreasonable search”. There are many reasonable searches which do not require a warrant. It is not unreasonable to allow searches which prevent 9-11 or OKC type activities.
To Mark: the Times is certainly a business, but there are certain responsibilities for their industry which are unique to media. Just as a pharmaceutical company, for example, has certain responsibilities (to make safe products, to share research data, to research drugs for diseases which may not be profitable, etc.), a newspaper has different obligations. Chief among these is the duty to report the news objectively and to publish stories which the public has a right to know. Another responsibility is that of self-examination (the Times is unusual among newspapers in printing a weekly ombudsman column by someone who regularly challenges the paper in blunt terms).
As a news outlet, the Times’s obligations as a news medium are different than, say, a music radio station. The public quote clearly has the right to know what its government is doing, and a news outlet has the obligation to report it fully and fairly. These things are essential to a vibrant democracy. These obligations exist outside the realm of business, just as Pfizer’s obligation to make safe pharmaceuticals is outside their realm of business.
As for Jayson Blair, etc.: of course we are all fallible, individually and institutionally. A CEO once told me that if someone really wants to defraud you, it is sometimes impossible not to be fooled. I’m not inclined to excuse the paper’s printing of his fallacious reporting. However, insufficient fact checking is a venal sin, but failing to inform the public of government misdoing is a mortal sin.
To Richard: the things revealed in the Times have not been shown to be illegal because they are unprecedented and unreported. You can’t find something illegal until you know about it.
However, the law states that searches require a warrant within 72 hours, and Bush admitted that he did not follow that law. To my mind, that’s pretty dispositive that the law was broken.
The three conditions you mention are irrelevant because the law does not make exceptions for them. Whether or not they would justify warrantless searches, they are against the law.
Nor does this mean that “a terrorist in the US is free to plan 9-11 type destruction just because there is not enough specific information to get a warrant.” The FISA court approves something like 99% of the warrant requests. If the government has credible information that someone is a terrorist, there is nothing about FISA which impedes the government from using its full force in finding and stopping him.
” – migration of ad dollars to the Internet, etc.). This affects all newspapers…”
No, it doesn’t – look at the WSJ for evidence to the contrary.
“- rising costs of paper and ink…”
Incorrect again – the annual cost of such materials has been rising at a rate of less than 3% yearly, over the past 5 years.
The Times is a national newspapaper (that carries national advertisers), and should be compared as such with other national media, not the local city dailies – on this level, the above arguments are specious at best.
I’ll be glad to give you cites on the above figures, if you wish.
I wouldn’t use the Wall Street Journal as evidence — they have had declining earnings over the past few years and their stock went down more than a third over the past five years (from 60 to 39).
Compare the rising cost of paper and ink (also labor to write the paper, print it, drive the trucks, etc.) with declining ad revenue — this is why print media are being squeezed.
The Times may be nationally distributed, but the bulk of its sales are in the New York metro area. Hence the bulk of their ad revenue comes from the local (and national) advertisers who advertise in the NY metro. The incremental revenue from national advertisers buying pages outside the metro is a relatively small percentage of their revenue.
The only two truly national newspapers are USA Today and the Journal, and neither has done very well lately.
” – the Times is unusual among newspapers in printing a weekly ombudsman column by someone who regularly challenges the paper in blunt terms.”
Once again, incorrect – many major newspapaers have ombudsmen – in fact, the Times stood out in their field by their obstinate refusal to appoint one, even after all the problems they had experienced over the past few years. They only appointed a person to this position after the Howell Raines tenure, in which such a measure was demanded of them…by their own employees (I refer you to the famous “Moosehead” speech to his employees by Pinch).
I may be wrong about an ombudsman column, but I’ve never seen one in another newspaper — certainly not in the Journal –
I gotta go with dmac on the ombudsman thing – that was done very, very reluctantly AFTER the Jayson Blair fiasco – but regarding your larger point – I want to address it more fully, perhaps in a post – but football first!…
Yes, the Journal is experiencing a decline in their stock price, but the comparison with national media stocks in general (Viacom, Time Warner, etc.) puts them in good stead at this time, while the Times has literally tanked. Also -witness the buyout speculation from Murdoch, which has them valued at a premium of over 40 times revenue (!). Meanwhile, their internet presence is responsible to a degree for the matriculation of a portion of their ad and subscriber dollars from their print side. They’ve lost dollars from that transformation, but they’ve kept the declines from becoming injurious.
When you look at the EDITDA from the NYT, their internet presence is also lagging far behind other media’s web operations, and there’s not really a need to bring up the disasterous performance of TimesSelect – no one is paying to read the thoughts and musings of their esteemed opinion writers, and are not likely to. Rumours have increased in the investment community over the past quarter that they’re going to have to shut it down soon, because of massive losses.
Here’s a good overview of the position of the newspaper ombudsman – its origins and implementation. You will notice that the position itself is by no means a new phenomenon:
http://www.newsombudsmen.org/jacoby.html
Here’s a local newpaper group in my area that employs one:
http://www.suburbanchicagonews.com/couriernews/city/3_1_EL25_A2OMBUDSMAN_S1.htm
I don’t believe that this position exists at the WSJ – but there’s never been a public or newspaper guild outcry for one at that paper.
Actually if you look at the past five years, the Times’s stock price (down from 45 to 27) did not tank as badly as Time Warner (from 40 to 18) and was only marginally worse than the Journal (from 45 to 30 — same starting point, only three points’ difference today).
As for their EBITDA (or, for that matter, their earnings after interest, taxes, depreciation, and amortization) or their web revenue: I have no idea how capable their financial management is, nor do I really care that much. My only point is that regardless of their financial performance, I do not believe that it has any effect on the content inside the paper.
As for ombudsman: is there one at the Chicago Tribune?
Peter,
Your argument that the Times can report because it might be illegal can mean it is OK to repjort how to make an Atomic Bomb because the government may have done something illegal in the process. The Constitutional Scholars for the most part have claimed there is nothing illegal in what President Bush did. The Constitution gives the power to the President to do whatever is necessary for National Security. Congress cannot pass any law which removes this power. All Presidents claimed the power to do warrantless searches. This includes Carter and Clinton and the FISA court agreed with this right.
If there is something illegal with what the President did, the propor authority to report this is the Office of the Inspector General. This whistle-blowing is then protected by law. Whistle-blowing to the Press is not protected from Criminal Prosecution. I for one believe a class action suit against the NYT for revealing National Security Information illegally is a real possibility. The leakers are the criminals, because they broke the law by going to the NYT instead of the OIG.
1) “Your argument that the Times can report because it might be illegal can mean it is OK to repjort how to make an Atomic Bomb because the government may have done something illegal in the process” is false. First, there is a distinction between publishing militarily sensitive information (how to make an atomic bomb, troop strength and location, etc.) and printing a story which revealed nothing new except for the government’s violation of FISA requirements. If the fact that we wiretap the conversations of suspected terrorists were a secret, you might have an argument. However, everyone in the world (including Al Qaeda) has known this for years. The only new information in the Times story is the fact that these were done without warrants and in clear violation of the law. There is nothing about that information which affects our ability to combat terrorists — do you think that terrorists would act any differently with or without terrorists?
2) “The Constitutional Scholars for the most part have claimed there is nothing illegal in what President Bush did” is also false. What scholars?
3) “The Constitution gives the power to the President to do whatever is necessary for National Security” is false as well. For example, the President cannot suspend habeas corpus for national security, he cannot violate the fourth amendment, and he cannot close newspapers in the name of national security.
4) “All Presidents claimed the power to do warrantless searches.” They did? When?
5) The leakers may be in legal jeopardy, but it’s too soon to know. As for the Times, they are protected by the first amendment and the Court’s decision after the Ellsberg case which stated that the publc’s right to know indemnifies the press in cases such as this one.
Peter
Quoting from the Opinion Journal of the WSJ.com Dec 20, 2005 http://www.opinionjournal.com/editorial/feature.html?id=110007703
Further case reference
Quoting again from an article titled:
Loose Canons
All the President’s Spies
By Jed Babbin
Published 12/19/2005 12:09:32 AM
http://www.spectator.org/dsp_article.asp?art_id=9169
Peter you also said
President Lincoln by proclamation in Sept 1862 suspended habeas corpus, the 4th amendment does not allow unreasonable search but does not prohibit warrantless searches entirely. As far as closing newspapers that’s still open for discussion but in Sept 1862 President Lincoln also issued a proclamation which stated that those opposed to the (Civil) War would be tried in a Military Court.
Re the various court cases: if you have the time, please refer to an earlier thread (“More Detail on Snoopgate” — Dec. 24) where these cases are discussed
Re Lincoln: he did suspend habeas corpus and close newspapers, which the Court declared unconstitutional. He ignored the Court. Habeas corpus was returned in 1866. So he did what he did, the Court ruled against it. As far as I know, this is the only unresolved dispute between two branches of government.
On the question of whether there was any oversight of this program, and of whether the leaks have caused any actual damage to our national security, I refer you to one of the two highest ranking Democrats on intelligence, Rep. Jane Harman (I’d never heard of her either — but she was chosen by the Democrats in Congress to lead them on intelligence issues.) who has this to say:
She’s in a position to know — which none of us are — and she was chosen for her position by the consensus of her Democratic Party colleagues in Congress. Are we really to believe anonymous insinuations and intuitions from the New York Times more than the bipartisan consensus of those of our elected leaders who actually know about this?
For the record, Rep. Harman has been on a plethora of Sunday morning talk shows over the past few years. She’s usually a thoughtful type, and rarely lapses into partisan stuff, regardless of the issue at hand.
At work now, so I don’t have the time to do the research to verify this with a cite, but I read that the FISA act requires the President to fully brief the intelligence committes of both the House and the Senate — and it was worded in such a way that it was clear that “fully brief” meant to inform everyone on the panel, not just the (eight?) members who were told about the program — so apparently some who were told objected (Pelosi, Rockefeller, Ashcroft’s #2 guy, and apparently Ashcroft himself) while others were OK with it — certainly not “bipartisan consensus” (either way) –
Also, apparently Harmon was not as enthusiastic about the program as it appears — the quote was taken out of context:
http://mediamatters.org/items/200512220014
Now Peter, you’re quoting from…Media Matters? Geez, I should use NewsMax for my next posting.
Peter,
I suggest you read this article at Power Line for information about the Supreme Court and NYT 1st Amendment rights and post publication accountability.
http://powerlineblog.com/archives/012749.php
Peter when you wrote
In reference to who gets informed I refer you to 50 USC413b( c)( 2):
http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00000413—b000-.html
Please take note of the words “If the President determines…”
to dmac: what’s wrong with Media Matters? Everything in it is supported by verbatim transcripts –
to Rochard:
1) I wasn’t aware that the dicta in the Pentagon Papers case suggested that the Times could be liable — they would not be binding, but they certainly would raise the possibility that the Times could be vulnerable — thanks for correcting me
2) I can’t get the link to work so I can’t comment on your second point — however, for what it’s worth, it contradicts what I read the other day on the subject –
Why it was important to keep the cat in the bag
… or to put it another way, why the NSA eavesdropping leak will harm our national security. Orin Kerr at The Volokh Conspiracy explains:
3. Finally, and relatedly, the details of the program from Risen’s book arguably explains the nation…