NSA Surveillance and Mission Creep

Last month, I wrote about the potential for mass surveillance mission creep: the tendency for the vast NSA surveillance apparatus to be used for other, lesser, crimes. My essay was theoretical, but it turns out to be already happening.

Other agencies are already asking to use the NSA data:

Agencies working to curb drug trafficking, cyberattacks, money laundering, counterfeiting and even copyright infringement complain that their attempts to exploit the security agency’s vast resources have often been turned down because their own investigations are not considered a high enough priority, current and former government officials say.

The Drug Enforcement Agency is already using this data, and lying about it:

A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin—not only from defense lawyers but also sometimes from prosecutors and judges.

The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence—information that could reveal entrapment, mistakes or biased witnesses.

I find that “some experts say” bit funny. I suppose it’s Reuters’ way of pretending there’s balance.

This is really bad. The surveillance state is closer than most of us think.

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Posted on August 6, 2013 at 6:16 AM • 50 Comments

Comments

Brett • August 6, 2013 6:40 AM

So we can assume that the “other experts” have no issues with the constitutionality of it.

Eric • August 6, 2013 7:41 AM

Just as it’s best practice to assume that a system is already compromised when working to secure it, I think this points out that it’s best to assume that your lines of communication are compromised whenever you wish to talk about anything private, and act accordingly. It’ll be interesting to see if some of the old ways of securing messages before the advent of computerized cryptography will come back into use–canting, say, or the other old-fashioned steganographic methods. I’d rather not have to memorize a whole dictionary’s worth, though.

Snarki, child of Loki • August 6, 2013 7:43 AM

Have the NSA funnel their data to the IRS, and crack down on the 0.1%ers who are abusing offshore tax havens….

…and suddenly, the NSA won’t have a budget anymore.

Hey, it doesn’t even have to be officially from the NSA. Just some analyst with access and an excess of ethics. There might be one or two left.

framecrash • August 6, 2013 7:45 AM

One can’t help but wonder how much of the burgeoning US prison population is a testament to the success of “parallel construction”. I mean, you want to get some sort of return on your undisclosed budget for intelligence gathering.

JeffH • August 6, 2013 7:54 AM

I continue to find it strange that, throughout the world, when news organisations report that our respective law enforcement agencies, the people we trust & employ to safeguard us, are being trained to lie, nobody seems to care. Have we really become so inured to the idea that only guilty people are arrested & prosecuted that this just seems ok? I’ve noticed that these days the media assume that a person who is a suspect must have committed the crime.

If we could trust the police et al. to not abuse their positions, to be truthful in their dealings, items like the article Bruce links would be far less worrisome, as in such a mythical utopia perhaps we really all would have nothing to hide. This doesn’t seem to be the case. This then begs the question of what one could replace the current law enforcement situation with, if human nature is just not capable of working in this case.

Firefox • August 6, 2013 8:09 AM

Look, this is old-fashioned stuff.  Suppose you (law enforcement) have an informant that you don’t want to expose.  The informant tells you about plans to rob a certain bank at a certain time.  You keep the date and catch the robbers.  You know the robbers will say “how did you know we were coming?” and if they don’t believe the answer, they’ll suspect the informant.  So you arrange beforehand to ‘find out’ by some other credible means.  And yes, you may even lie about it if you don’t want to reveal the informant to the defense attorney and thus to his clients.

The sheriff probably did that way back in the old West.  It doesn’t need the NSA.  How is it unconstitutional, if the case against the defendant doesn’t depend on where the cops got their information?

Firefox • August 6, 2013 8:28 AM

Oh, and intelligence does the same.  You have an agent in a foreign country.  He passes some information that you have to act on.  The opposition will think, “How did they know?”  To protect the agent, you have to make them believe you found out some other way, and if you have to lie even to your own government to make the story stick, you do that.  Happens all the time.

Roxanne • August 6, 2013 8:37 AM

Snarki: That’s probably what bothers Congress about both Manning and Snowden: The next guy might release the Congressional spending info and we’ll find out what’s in those black line items.

Sean Sullivan • August 6, 2013 9:28 AM

Asking for data… and are being turned down.

That first article almost seems designed to reassure members of the U.S. Congress that mission creep isn’t happening — so just move along, nothing to see here at the N.S.A.

J.D. Bertron • August 6, 2013 9:35 AM

This is a perfect racket:
Outlaw drugs, to justify taking your money to pay for law enforcement and then convince people they need to be monitored to ensure their safety.
Outlaw media copying, to cater to large media conglomerates who pay license fees, then charge people to pay for law enforcement to case down violators who threaten the ‘economy’, then convince people the monitoring is needed to prevent it all.
Outlaw guns because you can’t be trusted, unless you pay a fee, to finance law enforcement to chase down violators, then convince people the monitoring is needed to reduce proliferation.
Outlaw counterfeiting, especially bitcoin, because the government should be allowed to devalue everything you own, in case we need to fight another war somewhere.
Especially when a secret intercept warns us of an impending attack, from the mexican druglords trying to launder money by selling bootlegged records using bitcoins. Because you can’t defend yourself, remember, guns are illegal.

Kevin an Auditor • August 6, 2013 9:38 AM

“The surveillance state is closer than most of us think”

The Zombie Apocalypse isn’t coming: It’s here.

“I love the conspiracy theories,” said Mitch Barker, executive director of the Washington Association of Sheriffs and Police Chiefs. “I wish we could do all the stuff they think we can do. Can you imagine the capability it would take to analyze years worth of plate data and determine who has been going where?” http://seattletimes.com/html/localnews/2021534204_licenseplatereadersxml.html

Well, yeah, I can imagine that. A database plus MapQuest would be a great start. Additionally, how can I be assured that your data stays in Washington State?

Earth • August 6, 2013 10:08 AM

“If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence”

As the truthful cliche has it: A feature, not a bug.

benEzra • August 6, 2013 11:04 AM

“How is it unconstitutional, if the case against the defendant doesn’t depend on where the cops got their information?”

To use your example, if the sheriff were paying people to illegally B&E into people’s houses, then sanitizing the intel collected and using it to prosecute people, then I think one can see the constitutional issues with that. Even more so if it is government employees doing the initial data collection.

Daniel • August 6, 2013 11:50 AM

Mission creep can cut both ways.

https://twitter.com/BrendanEich/status/364265592112414720

Is suggesting that Firefox simply bundle Tor as part of its standard kit. I’ll go out on a limb and suggest that his is probably a minority view @ Mozilla. But it does go to show that for every response there is a counter response, the social organism /can/ adapt (which isn’t to say it will).

Eric • August 6, 2013 11:52 AM

Copper: You may want to double-check your tinfoil hat. If you don’t have a ground connection, it won’t work very well for RF shielding :-p

NobodySpecial • August 6, 2013 11:54 AM

@Firefox – because you can no longer trust anything about the “evidence”.
If the secret police tells you to check suspect A’s car and you find drugs but you aren’t allowed to ask how they know – shouldn’t you be a little suspicious that they know because they put them there?

Evidence means “that which is seen” it’s not to far from courts where the prosecution case is simply “he is guilty but we can’t tell you why – if you are a good patriotic jury you will find him guilty because we are the good guys”

H4x • August 6, 2013 12:05 PM

Bundling Tor into FF is a huge mistake, FF 0day doesn’t cost that much on the open market. Would be better to have a Tor VM and get rid of TBB.

I wouldn’t use it anyways. I still use lynx and pf to filter Tor. I may end up like Stallman scraping pages and emailing plain text to myself if the secret police get any larger and increased powers

Malor • August 6, 2013 12:07 PM

There was a time when tinfoil-hat tales were actually tales.

Well, the guys who were actually wearing tinfoil were mentally damaged, but myself, I think many of the regular people were just smarter than the average bear.

People only called them the tinfoil hat crowd because they were uncomfortable with the implications of what they were saying. Labeling them was the easiest way to stop thinking about it.

And people are still doing it.

Kevin Burton • August 6, 2013 12:08 PM

At this point it’s time to push for criminal prosecution for those in charge. This is a systematic abuse of law and we need to make it clear that these men are not above the constitution.

We need to start throwing people in prison.

jay • August 6, 2013 12:08 PM

The surveillance state is already here, it’s not quite complete yet, hasn’t revealed itself fully yet, but it’s here. I think the following quote from Frank Zappa sums it up quite well:

“The illusion of freedom will continue as long as it’s profitable to continue the illusion. At the point where the illusion becomes too expensive to maintain, they will just take down the scenery, they will pull back the curtains, they will move the tables and chairs out of the way and you will see the brick wall at the back of the theater.”

unknown.soldier • August 6, 2013 12:19 PM

“They take illegal surveillance data and create elaborate deceptions to use that data to take down criminals while hiding the source of the data”

…

They use this same methodology against politicians, and in many other dirty areas.

Seems not so bad when you are talking about drug kingpins. It is a little bit worse when they use this on people like Martin Luther King Jr, politicians, corporate VIPs, and every other manner of person.

While some may find that unbelievable or feign ignorance of how this is done: consider, even if it were not done today, you know there are no guarantees it will not be done this way tomorrow. Which could be the next administration. Fifteen years. Twenty.

I wish these guys would stop playing stupid.

“Oh I didn’t realize I was a brood of Satan”, “but look I have a badge”, or “But I work against terrorists”, or whatever other category of saintliness they mentally put themselves in: which can be summed up as “I am on the team that smashes heads, God isn’t stopping us, so we must be good”.

Brandioch Conner • August 6, 2013 12:22 PM

@Firefox

How is it unconstitutional, if the case against the defendant doesn’t depend on where the cops got their information?

Because of perjury. The cops/NSA/FBI/whatever are lying under oath about what the circumstances were.

Once you accept this form of lying under oath how do you know that other claims are not also lies?

At which point it becomes impossible to police the police. It is a police state.

And yes, you may even lie about it if you don’t want to reveal the informant to the defense attorney and thus to his clients.

The sheriff probably did that way back in the old West.

Or even the South back in the 1950’s and before. It’s okay if some “evidence” originates from lies under oath. Because you know that the guy is guilty of something.

Look up “lynching”. Then look up how many people were ever successfully prosecuted for it.

Roy • August 6, 2013 12:29 PM

This trickery was pioneered by J Edgar Hoover’s FBI. They would spy on people with illegal wiretaps and bugs, yielding ‘intel’, which they would ‘launder’ into ‘sworn testimony’.

Say that Moe, Larry, and Curly were mobsters talking shop while the FBI bugged the place. The feds figure Curly is the weakest link, so they find something serious to charge him with to turn him into a ‘confidential informant’, putting words into his mouth so that he can ‘recall’ those conversations for the agent to write down as testimony. Now that the ‘intel’ is ‘testimony’ attributed to an inside informant, they can apply for a warrant to bug the place legally, or a warrant to arrest Moe or Larry for something they admitted to or bragged about.

Today it is scarier, and not just the vastly expanded reach of the spies. These folks will come to understand that crafting a story to explain the provenance of actual knowledge is the exact same thing as crafting a story to explain the provenance of fictitious knowledge.

It would be simple to prove to a jury’s satisfaction that someone who’s been in a coma since 1975 has been viewing child pornography this year. They could attribute the computer to him and copy files from their own library of child pornography to the computer, or simply swear to all this fiction under oath, guaranteeing a conviction in the absence of any evidence.

Given that the public is coming to understand that the NSA spies on everything possible, they are inclined to take every allegation at face value, obviating the need for actually investigating anyone the government wants to imprison. If the government knows everything, then any knowledge it has must be true, right?

Jurors would be sold on any mountain of evidence, partly because of the gnawing fear that if they don’t play along with the monster their government has become, the monster will turn on them, devouring them.

Thecaseforpeace • August 6, 2013 12:52 PM

Bruce,

I don’t think the surveillance state is close. It’s right smack on top of us. We live in a totalitarian regime, period. Once people can come to terms with that fact, we can start working to shake off the criminals.

Check out the books by Sibel Edmonds. She’s a former FBI agent who was prosecuted for whistle blowing. She asserts that of every candidate investigated (background check) for a federal judgeship; the squeaky clean ones NEVER were appointed. Only those that had substantial dirt and irregularities in their background were appointed. They can be controlled. Regulatory capture is complete.

We are in a full fledged police state. At this point, I’m not sure how anyone can have doubts anymore. Come to terms with that fact.

Fedor Bulgakov • August 6, 2013 1:15 PM

The NSA is developing a quantum computer with the University of Maryland and private contractors to vastly increase their ability to process information. They will render modern encryption standards useless. This is slated to be completed in 2026, I reckon, as it was greenlit in 2011.

This isn’t the end. This is the beginning of something far more horrifying.

secret police • August 6, 2013 1:29 PM

Almost everything George Orwell warned against when he saw technology’s rise and it’s potential for totalitarianism has come true even down to newspeak. Google “Disposition Matrix”. Only thing left to do is make love crimethink and replace humanity with duty and efficiency.

This will all end badly. Not like they are ever voluntarily going to give up this enormous power.

Petréa Mitchell • August 6, 2013 1:48 PM

I read “some experts say” as “IANAL, but after a few tries I found one who was willing to make a definitive statement agreeing with my opinion, although not on the record.”

Asking a lawyer to make a snap judgement about the constitutionality of a program which has only been reported on in the most general terms is kind of like a reporter calling you, Bruce, out of the blue and asking, “Is such-and-such network secure?”

Abney • August 6, 2013 2:34 PM

Gotta admit that if the government is using these tactics to catch the bad guys, I’m all for it. Unfortunately, it’s sounding like a double-edged sword that’s slicing away at our rights. My comings and goings aren’t criminal, and the idea of being spied on is a bit creepy. Sad that we need to even be concerned about this in the U.S.

Victor Khong • August 6, 2013 3:56 PM

I now believe that Elliot Spitzer was brought down by illegal surveillance and unconstitutional wiretapping and NOT by the official story.

Brandioch Conner • August 6, 2013 3:57 PM

@Abney

Gotta admit that if the government is using these tactics to catch the bad guys, I’m all for it.

Right up until you get classified as a “bad guy”.

My comings and goings aren’t criminal, and the idea of being spied on is a bit creepy.

Now think about how this could be used by unscrupulous cops. Do you have a wife or daughter?

Once you accept a cop who lies under oath about the source of his information you also accept a cop who can lie about who a “bad guy” is.

Dave • August 6, 2013 4:15 PM

@Abney”My comings and goings aren’t criminal”

They are if any of the government employees with the power to define the term “bad guys” says they are. Or as Lavrentiy Beria put it, “Show me the man and I’ll find you the crime”.

unknown.soldier • August 6, 2013 4:57 PM

Kevin an Auditor • August 6, 2013 9:38 AM
“The surveillance state is closer than most of us think”
The Zombie Apocalypse isn’t coming: It’s here.
“I love the conspiracy theories,” said Mitch Barker, executive director of the Washington Association of Sheriffs and Police Chiefs. “I wish we could do all the stuff they think we can do. Can you imagine the capability it would take to analyze years worth of plate data and determine who has been going where?”

Rule 1:
Nobody is more of a conspiracy theorist then someone in a conspiracy.

Rule 2:
Nobody is more hardened against the possibility of a conspiracy then someone who works for that conspiracy but is unaware of it.

Not to give these guys ammo. The problem is endemic. You live in a bad, nasty world. Because you may sometimes smash some other bad guy’s head does not make you a good guy. The vast majority of “the bad guys” do not think of themselves as bad guys. Which you would know if you ever bothered to have any humility — to do your homework.

Not hard to go, “hey, we know the Nazis were bad”, or “hey, we know the mafia is bad”, and then go and look and see how these guys thought of themselves. They did have a swagger, sure. That is not “I am bad person” (as in ‘a worthless leech on the world making sure it is always a bad place to live’), it is a “I have power” swagger. Same swagger you “good” guys take on.

Same reasons.

Really horrible people, the last thing they want to see themselves as or be seen as is what they are. They put enormous effort into this. Your sociopath is the one who is studiously charming and clean cut, not your empath. Your empath is the one with the skulls and crossbones on their leather jacket. Your typical sociopath is the one with a badge and a suit, tirelessly “doing good”. Deep, deep down they know what they are. You should pity them for that day when they finally can make out their face in the mirror of their soul: the portrait of dorian grey.

Ugly sons of bitches worse then the nastiest of cockroaches.

Figureitout • August 6, 2013 6:26 PM

Bruce
—This made the front page of Reddit w/ >700 comments but the discussion was more on the jokesie side. Your message is still getting out there.

Dirk Praet • August 6, 2013 6:43 PM

@ Bruce

My essay was theoretical, but it turns out to be already happening.

For all practical purposes, it also seems the logical thing to do. Following government/LEA/TLA logic, Why not put all these collected data to a much broader use than just terrorist investigations, thus yielding a much higher return on investment ?

But which again begs the question under which authority and under which law(s) this is happening. Are we about to find out that there are some more secret law interpretations around by the FISC or other courts we haven’t heared about just yet ?

George • August 6, 2013 8:10 PM

So our constitutional rights now depend on the NSA’s ability to keep other agencies from encroaching on its turf? That sounds only slightly better than the kangaroos on the FISA Court.

Steve • August 6, 2013 8:47 PM

The only way to exist in a world government owned by technicratic globalists is for such system to make everyone a criminal to feed the prision system (labor force or forced labor?) a constant stream of slaves (see unicor.gov) to serve the one world government system; thereby procuring a monopoly on the world’s human resources in a proper, scientific, enslavement fashion/model. Genius. Or is it eugeniousist? (Eugenics). I think we’re living is a science fiction novel, actually:), but nobody could make this up. Aldoux Huxley and George Orwell couldn’t have imagined. . .

Bryan • August 7, 2013 12:21 AM

@Victot Khong

Thats exactly what I’ve been thinking…Eliott Spitzer was a victim of this illegal surveilance. The cover story Never made any sense.

Terry • August 7, 2013 1:52 AM

I don’t like to sound like a conspiracy nut but I don’t believe anything the governments says anymore. For instance, this mass closing of Middle East Consulates I believe to be a smoke screen to justify the massive spying programs. It gets to focus off the spying and gives (some) people the idea that these programs are justified. It’s interesting that all the danger and Internet chatter is… wait for it… CLASSIFIED!

TheDoctor • August 7, 2013 2:18 AM

Backlash.

The US government got so used to such methods using them on rightless aliens (with the permanent applause of most of the US people, because “…it’s only them, but WE are protected by the constituition…”) that they asked themselfs “…this is so nice and easy, why not use it on the domestic marked ?”
The answer was “Yes, why not” and so those mentioned US people get what they deserve…

OldFish • August 7, 2013 6:12 AM

@ Victor Khong
re Spitzer: this was obvious as soon as we learned his current investigative focus was Moodys, S&P, and Fitches, the deliriously wonderful folks who rated so many bundled crap mortgages as AAA investments. This was part of the story within days of the original breaking news. When you assume abuse of power, more and more events seem to “fit”.

Coyne Tibbets • August 7, 2013 9:01 AM

“The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated”

I have a name for this: I call it…

evidence laundering n. The act of concealing the source of evidence obtained by illegal or unconstitutional means, so as to render it admissible.

Evidence laundering, when proven, should be a felony, because it is premeditated evidence tampering, obstruction of justice, and perjury.

toasted • August 10, 2013 12:03 AM

folks you/we are screwed
there IS a surveillance state
and most shrug ; MSM covering for obama so most hidden
mr transparency has killed truth, privacy, much else
this will lead to loss of effective US control of the net root
obama will have ended the open internet
american idol pres
he’ll financially and security-wise ruin the US too before he’s done
folks shoulda used google to vet him
now google helps him politicize the state against half the country
and will add in race and class posturing to deflect
but dont worry as conservative=radical and good=bad post 1984
go dems

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