Did the NY Times’ NSA Leak Harm National Security? (Part Three – The Orin Kerr Hypothesis)
In the Parts 1 and 2 of this series, I put forth the argument that the NY Times’ leak of the NSA eavesdropping program hurt national security because (a) the Times’ own reporting indicated this, and (b) the long-term reauthorization of the Patriot Act was, at the very least, delayed because of the timing of the leak. In the 3rd installment, I want to talk about a statement by Orin Kerr, Associate Professor of Law at George Washington University and frequent contributer to the popular Volokh Conspiracy blog.
In an extremely valuable post written after the release of the James Risen book “State Of War
The purpose of this series is not to discuss the program itself, but rather the leak; however, for clarification, many have (mistakenly, in my judgment) assumed that the only thing new about the NSA program was that American citizens could be involved, and that as a result (or out of sheer laziness, malice, or spite) George W. Bush bypassed the FISA courts (again, another subject – but see here) because what he was doing was illegal.
Others, myself included, have argued that all available signs point to a massive data-mining operation, and that this was the reason FISA was bypassed – by definition, such an operation could not result in a warrant, since it is a huge ‘fishing’ operation. (Notice that this still doesn’t preclude the program being illegal – and it should also be noted that many, including the administration, argue that FISA is not applicable anyway, and that the administration’s legal basis for the program comes from the congressional resolution following 9/11 that authorized the use of force against terrorists).
Kerr says that neither view is quite correct:
Based on what I have read from Risen’s book, it seems less likely to me than it did before that this is a TIA-like data-mining program. 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…
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 regsister[sic]/trap-and-trace or wiretap, depending on how the filters are configured. (I’m not sure how different telephone traffic is these days, at least inside the provider switches.)
This is different from a data-mining program. The term “data-mining” is usually used to mean taking an already-gathered database of information, and then performing analysis on the gathered database in lots of ways to identify patterns and characteristics. As best I can tell, the NSA program was not actually recording domestic Internet traffic, putting it in a database, and then “mining” it for key words and the like. Rather, this was a real-time surveillance program focusing on traffic associated with specific phone numbers and e-mail accounts.
The significance is that by ‘sniffing’ datapackets streaming through switches owned by telecom concerns, real-time analysis could be performed on any communication that is routed through any of those switches regardless of where the communication began or ended.
Based on this interpretation, Kerr put forth two ways in which the NSA leak could harm national security:
It’s not that terrorists may suddenly realize that they may be monitored; that argument never made much sense, as every member of Al-Qaeda must know that they may be monitored. Rather, I suspect the security issue is twofold. In the short term, terrorist groups now know that they can stand a significantly better chance of hiding their communications from the NSA by chosing communications systems that don’t happen to route through the U.S. And in the long term, some countries may react to the disclosures of the program by redesigning their telecommunications networks so less traffic goes through the United States. The more people abroad know that the NSA can easily watch their communications routed through the U.S., the less people will be willing to route their communications through the U.S….No doubt it was a long-term priority of the NSA to ensure that lots of international communications traffic was routed through the U.S., where the NSA could have much better access to it. Indeed, Risen’s book more or less says this. The disclosure of the program presumably helps frustrate that objective.
So, to recap: short-term, terrorists are alerted that their communications cannot route through the U.S. at any time to be truly secure, and presumably can and will quit using certain channels that they used before, thereby limiting our monitoring of their traffic, and long-term, other nations, concerned about the security of their own traffic, and motivated by sovereignty concerns as well, may choose to design or implement networks that don’t relay through U.S. routing or switching at any point.
Thus, the third leg of our case is a technical one, but perhaps the most important one; no one is dumb enough to think that the terrorists weren’t aware we were doing our damnedest to monitor their communications, but now they (a) have a better picture of how we were doing so, and (b) have a pretty good blueprint to avoiding monitoring.
The harm to national security is self-evident…
In the short term, terrorist groups now know that they can stand a significantly better chance of hiding their communications from the NSA by chosing communications systems that don’t happen to route through the U.S. And in the long term, some countries may react to the disclosures of the program by redesigning their telecommunications networks so less traffic goes through the United States.
And he was doing so well up to that point …
Everyone know that the NSA has been monitoring foreign-foreign communications. And everyone knows that, on modern packet-switched fiber-optic telecommunications networks, that job is made infinitely easier if the foreign-foreign communications are routed through the US.
Nothing new there. Al Qaeda (and everyone else with a stake in it) has known that has been going on for decades. To the extent that they are able, they may indeed try to route around the US. But, again, they didn’t learn about it from the NYT.
What’s new is that the NSA has been capturing communications where one of the endpoints is domestic (foreign-domestic and domestic-foreign). There’s no way to route around the US for those communications.
Maybe you want to argue that al Qaeda will have changed its behaviour in other ways in response to the knowledge that the NSA is applying the same techniques to foreign-domestic and domestic-foreign communications as they have long applied to foreign-foreign.
But that’s a different argument, and Kerr didn’t make it.
Jacques, perhaps you’re right – I freely admit that all of this is a bit over my head and I’m relying on Professor Kerr’s expertise, for better or worse; I tried to wade through the 106 comments his post got to see if they shed any light on the correctness or incorrectness of his position, but they quickly descended into an argument over whether binary or textual representations would be sniffed, etc., etc., and lost the big picture, in my view.
So, as it stands from my (admittedly meager) knowledge of the routing of communication traffic, Kerr’s argument makes sense to me. It’s duly noted for the record that someone who may just be a teensy bit smarter than me disagrees (and by the way, thanks for responding to the substance of the post – if I’m playing the prosecutor in this game, it makes for a more effective defense when my actual arguments are disputed)…
Well, two more points.
1) You don’t have the ability to choose the precise routing of your long-distance phone-calls over the international (or, for that matter, domestic) telecom network, and neither does al Qaeda. Foreign Telecom companies, do have that ability (to some extent), and I’m sure foreign governments have pressured their Telcos to route around the US, to the extent that’s possible. The fact that a large percentage of international phone and internet traffic still gets routed through the US is a testament to some tenacious facts about geography (and economics).
2) It may well be that al Qaeda was less careful in its communications with agents in the US than it was in its communications which were purely outside the US. But that sounds kinda implausible. Once you’ve worked out a protocol for communicating between Hamburg and Kuala Lumpur, why relax that protocol when you’re calling Detroit? Because you trust the NSA not to eavesdrop on the call? Yeah, right …
On a related note, here’s an article from the NYT that once again proves to be a fabrication:
http://www.reason.com/hitandrun/2006/01/the_new_york_ti.shtml
The New York Times – the gift that keeps on giving.
Well, if you’re gonna link to the NYT’s retraction of the caption to a photograph, let’s link to everyone’s favourite news network
as the tireless work their “news analysts,” right up till the day they’re indicted.
No way — I gotta admit, that’s a good find, Jacques…I just saw an article in the WaPo today about how Reed is under suspicion. Good timing, Fox!…
On the contrary, I’ve never stated that I think Fox is in any way less partisan than the NYT – but at least they admit their biases up front, rather than hide behind a supposed “paper of record” balderdash.
When everyone comes clean on where their preferences lie as a news organization, the better the viewing public will be served – after all, we can make up our own minds on the issues, right?
The NYT, at least, makes an effort. They did, after all, issue a retraction (linked-to above). Has FOX ever retracted anything they’ve broadcast? (There would be little left unretracted, if they applied even the same imperfect standards of honesty prevailing at the NYT.)
“Has FOX ever retracted anything they’ve broadcast? ”
What a silly and ungrounded assertion – of course they have, Jacques – if you’d only bothered to have actually looked:
Here are a few retractions they’ve made over the past year:
http://www.foxnews.com/story/0,2933,134166,00.html
http://energycommerce.house.gov/107/hearings/02142001Hearing216/Ailes320print.htm
http://moorewatch.com/index.php/weblog/comments/1265/
Interestingly, most of the complaints regarding retractions from Fox have to do with their opinion hosts, with bloviators like O’Reilly and such. If we applied the same standard to the NYT, they’d run out of paper after retracting the stuff that MODO, Kruggie and Rich put out every week.
Your comment suggests you know next to nothing about the Fox network, but you know quite a lot of the talking points from the salons of the Upper West Side.
None of those were “made over the past year.”
One was from the 2000 election, two were from the 2004 election. Of the latter, one was a false story that FOX didn’t retract, a failure that, even the author of “moorewatch.com” called “Completely irresponsible.” (it’s right there, in the link you proffered).
Still, you’re point is taken. I’m sure FOX has retracted any number of stories over the past year.
Am I to understand that you consider FOX’s newscoverage to have a level of accuracy at least as high (or level of inaccuracy at least as low) as that of the NYT?
Jacques, let me butt in with one quick point: though I understand where you’re coming from, I don’t think it’s fair to compare Fox with the NY Times…even an inveterate NY Times mocker like myself thinks that print, as a rule, is more accurate than television…a more apt comparison would be with CNN or MSNBC…but as you can tell, I don’t think much of cable news…
I think the Times is a fine paper that needs new leadership…Pinch is a failure, and it’s not just conservatives who think that…
A fair point, Mark. I don’t think much of cable news either. So I’m not about to stick up for CNN.
But in the print medium, I don’t think you or dmac would try to compare the NYT unfavourably to the Washington Times, either, now would you?
Good point – I don’t read the Washington Times, they’re rabidly partisan. As for the Times, I was a regular subscriber during the “Punch” years, when they tended to be less ideological than they’re presently constituted. Still subscribe to the Sunday issue, but I’m getting to the point where my loyalty to that is being sorely tested.
I just wish all news outlets would drop the pretense of fairness in their reporting, and just go with their internal flow.
Yeah, but even the Times (Washington) has its usefulness – I like to turn to it to see what the ‘pro-administration’ take is going to be on various issues – which I suppose proves your point…
Jacques-
As someone who grew up reading the NYT every day, I’ve come to compare it unfavorably both to what it once was and to the Washington Post, which retains all the virtues that the Times had fifteen or twenty years ago, especially on the op-ed page.
I certainly wouldn’t compare the NYT unfavorably to, among others, the Washington Times, the LA Times, or the Guardian.
Mark-
Generally speaking, I suspect that there has been damage to our national security from the NYT NSA leak — based on Rep. Harmon’s statement to that effect and the strength of the Administration’s response — but it’s just a suspicion.
I’m much more certain that the U.S. News piece on nuclear monitoring has made us at least a little less safe on ludicrously flimsy legal concerns.
[...] In parts 1, 2, and 3 of this series, I gave three reasons to think that the New York Times harmed our nation’s security by leaking the NSA eavesdropping program. The New York Times gave circumstantial evidence that it believed the leak to be harmful by holding the story for a year and only releasing it when it was about to be scooped by an upcoming book, “State Of War” by James Risen, a Times reporter. Further, though perhaps not intentionally, harm was caused to our national security by, at the very minimum, delaying long-term reauthorization of the Patriot Act due to the scoop being released on the eve of the Senate vote. Finally, I relied on arguments put forth by GWU Associate Professor of Law Orin Kerr in naming a third and fourth reason to believe harm had occurred: short-term, we may have given valuable information to terrorists on strategies to bypass our monitoring, and long-term, we may have further encouraged the development of communication networks that are routed and switched entirely outside of the United States. [...]
Clint, you’ve certainly got a point…
[...] A: That’s a good question, and the answer isn’t straightforward. Gonzales says, essentially, yes: the Administration has authorized a program limited in scope that targets communications where one end is a known or suspected terrorist. Others, myself included, have argued that data-mining or packet-sniffing is involved. Adding to the confusion, there are actually two NSA surveillance programs that are often jumbled together, whether intentionally or from ignorance: the President’s, and a program authorized by Michael Hayden when he was at the NSA. [...]