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Spying Games

by Paul Rapp on June 13, 2013


’Spose I have to write about this NSA spying mess, right? I shudder at the thought. I’ve only been following it casually and even the conflicting headlines make my brain hurt. It’s a huge story, but it’s not a new story, and the mainstream press, to the extent it’s covering this at all, is once again doing us a huge disservice with a total lack of critical insight as to what’s happening.

First of all, no, there are no government brownshirts poring over your flirty texts to your boyfriend, your prescription refill call to Rite Aid, or your latest Facebook post about some poor pooch who’s gonna be gassed in the morning at a dog pound in Texas unless somebody does something. That’s not happening. No, Obama hasn’t jackbooted the reins of power or black-helicoptered your innermost thoughts. You wouldn’t know that, though, if all you see are the headlines.

It doesn’t even appear that the administration has broken the law. And that’s not to say things are OK. But things aren’t as bad as the media are portraying them. Keep in mind, this is a thread that includes the phony IRS scandal that the media loved, followed quickly by the Department of Justice investigations of a couple of reporters that caused the media to rise up in righteous indignation, maybe even more so than when the media wasn’t allowed to follow Obama around the golf course a few months ago. Sigh.

What appears to be happening is that the government is getting enforceable orders from a secret court to seize huge datasets from telephone, Internet and social-media companies, datasets that contain tracking info, metadata, of foreign communications that it deems to be suspicious. These huge datasets also contain lots of tracking info of domestic calls, because that’s apparently how the data are constructed. The government claims it is only interested in the foreign traffic and disregards the domestic stuff. The government doesn’t get any of the actual content of the communications, just info regarding source, recipient, duration, etc. And all of this is dutifully reported to Congress on a periodic basis. And it’s all totally within the law and it’s been going on for years.

Oh, and the various communications companies don’t appear to be letting government spooks run willy-nilly through your stuff either. Rather, when served with a secret order from the secret court, the companies (some of which may have challenged the orders, and lost) secretly gather up the required info and more or less secretly dropbox it to the government.

Now, the proceeding paragraphs could very well be big loads of crap, but it’s the most logical explanation I can concoct from distilling the best sources I could find out there.

So it’s the law that allows for this that’s the problem. Or is it? In the days following 9-11, we allowed a lot of our privacy to get pissed away with Congress’ passage of the Patriot Act because we were all a-skeered of them crazy Ay-rabs flying more jets into our skyscrapers. And the laws have been reauthorized, broadened, deepened and strengthened by Congress over and over again. What you’re reading about now isn’t new. A handful of senators and lots of scholars and commentators have been bemoaning the death of privacy for a long time. We’ve been doing it right here for as long as we’ve been right here.

So while you probably haven’t been violated as badly as you’ve been led to believe, yeah, you’ve probably been violated. Do you care? I mean, most of us don’t care that our online browsing habits are closely monitored by marketing companies, so when we spend 20 minutes online looking at, say, spatulas, for the next several weeks we’re targeted with ads for spatulas. It’s not magic! We accept it. It’s actually kind of cool, right? So we really don’t mind that kind of surveillance, but now we’re furiously beating our chests because the broad contours of our communications may end up in a digital stew that the government uses to keep crazy people from blowing us up?

Yes that was a rhetorical question. Of course I don’t trust the government, either. But the data is out there, and the question isn’t so much whether it should be used but how, and under what conditions? Secret laws, secret courts, and secret orders subject only to secret “congressional oversight” is not acceptable. This is tantamount to sending rodeo clowns in to do heart surgery. Notions of privacy are changing at an almost incomprehensible pace, but we haven’t yet and need not devolve into an Orwellian or Kafkaesque state. I hope.

Paul Rapp is an attorney in the Berkshires who not only wears a tin foil hat 24-7 but makes his dogs wear them, too.