The High Likelihood That Future NSA Abuses Will Occur

The latest defenses of the agency put an irrational amount of faith in its analysts and supervisors.
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The Guardian's latest scoop concerns the ability of National Security Agency analysts to search vast databases of emails, online chats, and web browsing histories, among other online activity.

Glenn Greenwald notes that the NSA is lawfully required to obtain a FISA warrant if the target of surveillance is a U.S. person. But it provides analysts "the technological capability, if not the legal authority, to target even US persons for extensive electronic surveillance without a warrant," he reports, and to reveal IP addresses of everyone who visits "any website the analyst specifies."

That alarms many Americans.

The Guardian article doesn't provide any evidence of NSA analysts targeting U.S. persons without a warrant, as critics of the newspaper are quick to note. Yet there is still ample reason to worry.

It is naive -- in fact, it is absurd -- to imagine that the scores or hundreds of NSA analysts given access to these databases will never commit abuses. There are bad apples in every human enterprise. Agencies that operate under the cover of secrecy are that much more vulnerable to abuses. U.S. surveillance agencies have a particularly sordid history of abusing the power given them. Illegal, warrantless spying on Americans was secretly conducted as recently as the Bush years, and the people responsible for the illegal abuses were granted retroactive immunity. Edward Snowden himself demonstrated that the NSA cannot predict when one of its own might suddenly abscond with top secret information that no one planned to be made public.

Then there is the lesson that 9/11 taught us.

In its aftermath, the U.S. government panicked. Federal officials institutionalized behavior, including the torture of other humans, that would've been unthinkable before the terrorist attack, and a traumatized nation required years of reflection to turn against the most extreme practices. Could the NSA be trusted to restrain itself after a future terrorist attack, or would the safeguards its defenders keep referencing be swept away by a new generation of panicked officials?

Or what if a higher-up at the NSA didn't panic, but exploited the panic of everyone else?

Unless the NSA is reined in, it is all but certain that future abuses will occur. The question its defenders ought to be asked is, "Would you support these programs even if you knew future abuses were inevitable?" True, every law-enforcement tool is abused at one time or another. But the consequences of NSA abuses are catastrophic in a way without precedent in American history because their law enforcement tool contains private information about almost every citizen.

How many government officials could be blackmailed with already collected material that no one has looked at ... yet?

The NSA is nevertheless out with another defense of its program. The statement, posted online Wednesday, is worth a close look. "The implication that NSA's collection is arbitrary and unconstrained is false," it begins. Recall that this is an agency that collects metadata on all phone calls. In other words, its approach to data collection isn't "arbitrary," it's virtually comprehensive. "NSA's activities are focused and specifically deployed against -- and only against -- legitimate foreign intelligence targets in response to requirements that our leaders need for information necessary to protect our nation and its interest," the NSA's statement continues.

Let's read carefully.

The NSA's activities may be "focused and specifically deployed against -- and only against" foreign targets. But the fact that it isn't "focused" on American citizens doesn't mean their phone data, Internet behavior, and other information isn't being collected in vast, searchable databases. If and when access to that information is abused, the focus of the program that first collected it won't matter.

The NSA says:

XKEYSCORE is used as part of NSA's lawful foreign signals intelligence collection system. By the nature of NSA's mission, which is the collection of foreign intelligence, all of our analytic tools are aimed at information we collect pursuant to lawful authority to respond to foreign intelligence requirements - nothing more.

The analytic tools may be "aimed at" information relevant to foreign intelligence. That doesn't mean that those same tools aren't hoovering up lots of domestic information with no relevance to foreign intelligence, or that an abuse-minded NSA employee couldn't aim the tools elsewhere.

NSA:

Allegations of widespread, unchecked analyst access to NSA collection data are simply not true. Access to XKEYSCORE, as well as all of NSA's analytic tools, is limited to only those personnel who require access for their assigned tasks. Those personnel must complete appropriate training prior to being granted such access - training which must be repeated on a regular basis. This training not only covers the mechanics of the tool but also each analyst's ethical and legal obligations. In addition, there are multiple technical, manual and supervisory checks and balances within the system to prevent deliberate misuse from occurring.

In other words, analyst access to the data isn't "widespread and unchecked," it is widespread and checked. Given the secrecy surrounding the agency, it is actually impossible to verify the system of checks. But even presuming that there is excellent ethical training, as well as "multiple technical, manual and supervisory checks and balances within the system to prevent deliberate misuse," the same can be said of the U.S. military, the IRS, the NYPD, the prison at Gitmo -- serious abuses happen all the time in government agencies despite government training and checks and balances. Operating as if they won't ever happen is ahistorical and reckless. 

"Our tools have stringent oversight and compliance mechanisms built in at several levels," the NSA states. Similarly, there were stringent oversight and compliance mechanisms to prevent telecom companies from conspiring with the government to wiretap Americans without warrants.

But it still happened after 9/11.

So long as the NSA operates largely in secret, with tools that enable intrusions into privacy on an extreme scale, the odds that there will eventually be serious abuses approach 100 percent. If and when that happens, Presidents Bush and Obama, NSA Director General Keith Alexander, Senator Dianne Feinstein, and many others will share the responsibility for the totally preventable catastrophe they enabled.

The annals of history encompass people who helped to build vast surveillance states. Do we think well of any of them?

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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