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The Future Of Foreign Intelligence: Privacy and Surveillance In A Digital Age - Laura K. Donohue

Greetings and Happy Spring every one! I hope you all feeling awesomely!

On my podcast, On The Same Time (which you can find on all our favorite podcast platforms today!), Episode 06 - Fallacy In Totality, I spoke about my beliefs on Sept 11, 2001, to which I believe is a total sham. Not going to delve into that idea any further, however, I just wanted to point to its relation and "coincidence" with this post. Sometimes, when I purchase books, the title alone may be the reason I get it. Or sometimes, I'll completely forget about its content and title after buying 20 more books lol. Once it's time for me to select a new book to read, I stand in front of my bookcase and randomly pick. Oddly enough, today's feature speaks on the systemic changes in the American government prior to and following the events of 9/11. The coincidental moment to me was that I chose this book within days after speaking about it and the episode had yet to be published! I enjoyed the information presented in this book.

Today we have: The Future of Intelligence: Privacy and Surveillance In A Digital Age by Laura K. Donohue. This book was published by the Oxford University Press in 2016. Concluding with readable text at 160 pages prior to the notes section, it's a quick read! I started this book 03/13/2021 and finished it 03/21/2021. There are seven detailed chapters of some good shit in this one. I probably should have finished it quicker than I did lol. I am okay leaving this with...

Grade: A

Donohue begins the introduction with a 1777 setting, in New Hampshire, USA with a beautiful and insightful first sentence of the book. "Since the early day of the Republic, political and military leaders have recognized the U.S. national security depends upon the collection of intelligence" (1). The New Hampshire Committee of Safety alerted the Provincial Congress in Massachusetts that the British were sending troops to Boston. With this info, of course, they took this to their advantage and sent 1,200 soldiers, surprised the British, yet still perished. Even in this era intelligence was vital, George Washington spent more than 10% of his military money on surveillance. Networks of agents were dispersed to gather advantageous information. Within half a year, Congress created the Contingent Fund of Foreign Intercourse, known as the "Secret Service Fund", to be used by Washington and numerous presidents that followed him. The idea growing from the line of presidents was there is a need for insight of information abroad. "Absent information about threats, the country is in peril, Accordingly, Congress and the courts have given the executive latitude in how it obtains intelligence from abroad" (2). Interesting perspective which leads to intriguing potential outcomes, eh?

The 1947 National Security Act prohibits the director of the CIA from having any domestic "police, subpoena, law enforcement powers or internal-security functions". More restrictions have come with surveillance conducted inside the USA on its citizens, to protect their rights. Starting in 1978, domestic electronic surveillance ushered in for national security purposes had to comply with the Foreign Intelligence Surveillance Act. This law provided added protections to U.S. citizens and created a special court to oversee this process, and required congressional oversight of the intelligence agencies. "The problem that we now face is that the law is no longer sufficient to guard rights. The world is suddenly and radically changing. New means of collecting and analyzing citizens' information threaten individual liberty and risk upsetting the balance of power in the United States" (3). Then Donohue points to 4 different phenomena that helped create this scenario.

First, new technologies have dramatically expanded the amount and type of information that can be obtained, stored, and analyzed. Second, even as technology has increased the information available, the government has expanded its authority to gain access to the data. Third, the geographic assumptions built into the law to protect citizens no longer hold. Fourth, since the events of 9/11 there has been a convergence between national security and domestic law enforcement. There goes my "coincidental moment" and reference for 9/11, eluding to the fourth phenomena that the ruling class likely will increase its power after or during tragic events. "The accumulation of power resulting from these changes risks enormous political and social harm, as well as the potential for the executive branch to override the structural constraints under which it historically has been placed. The stakes could not be higher as we confront the digital age" (4). Following the paragraph, Donohue transitions to the history of abuse in the history that precedes September 11, 2001.

In 1971, a group of anti-war activists, dubbed the Citizens' Commission to Investigate the FBI, broke into an FBI office in Pennsylvania. It was timed on the night of the Muhammad Ali and Joe Frazier fight, pretty good timing, hm? lol. This group recovered and stole 1000 classified documents, which one can expect that they began to leak it to journalists and members of Congress. On December 6, 1973, NBC reporter Carl Stern, filed a story on NBC Nightly News to initiate a Freedom of Information Act lawsuit. This was a counter to the "COINTELPRO" (counterintelligence program) operation. Some other information that would not be breaking news to me: some files showed J. Edgar Hoover ordered political campaigns to expose and alienate the New Left. The FBI targeted mostly left-wing groups for no law enforcement purposes. All these allegations led both houses of Congress to create temporary committees to investigate.

The House Select Committee on Intelligence, and the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities. A Democratic Senator, Frank F. Church found that domestic surveillance had been done under the guise of foreign intelligence which undermined U.S. citizens' privacy rights.

The NSA were silent players in these actions. "The NSA, founded in secret in 1952 without a charter, was virtually unknown to most Americans at the time" (5). Another less shocking tidbit: The NSA was not the only federal team "spying" on citizens. "The NSA was not the only federal entity making use of the new technologies to collect information on citizens. The FBI, CIA, IRS, U.S. Army, and others engaged in broad, domestic intelligence-gathering operations. These programs affected a staggering number of citizens. FBI headquarters maintained more than half a million domestic intelligence files. The CIA opened and photographed nearly a quarter of a million domestic first-class letters between 1953 and 1973, resulting in a computerized index of some one and a half million names. The FBI also opened hundreds of thousands of letters. Another 100,000 Americans were the subject of Army intelligence files, even as the IRS maintained a database on 11,000 people based solely on political criteria. In each case, the initial purpose was to protect against national security threats. But the targets quickly expanded to include petty criminals and anyone with divergent political views" (8). Sorry, I know that was a long ass quote, but I feel that is some pretty good information to be at least aware of.

Following cases such as Katz v. United States and United States v. U.S. District Court, spawning in 1978, the Foreign Intelligence Surveillance Act (FISA). More and more outcry levied against invading citizens' privacy, prompted Congress to create additional divisions to level the playing field, if you will. "Congress adopted procedures aimed at restricting the type of information that could be obtained and retained. As a further precaution against the executive overreach, Congress provided for two new courts: the Foreign Intelligence Surveillance Court (FISC) and, to act in an appellate capacity, the Foreign Intelligence Surveillance Court of Review (FISCR). The purpose was to ensure that an independent, neutral, disinterested magistrate reviewed the strength of the government's case before it could place citizens under surveillance. Congress did not provide for opposing counsel. Instead, applications were made to the Court by the agency seeking the information. Where the government met the criteria and filed with the appropriate forms, the judge's role was to enter an order as requested or to modify it accordingly" (11). Another whole brick, my apologies, but she dropping gems lol.

If your confidence is waning at this point, one could bet that loopholes were found and/or created, so that privacy invasion can continue undetected. Over the years following, Congress amended the FISA multiple times. Prior to the digital age in 1994, Congress amended FISA to include a provision for physical search. Similar to the requirements to mark electronical surveillance, the government should first establish probable cause to enter someone's home. Yet, in 1998, Congress' amendment allowed for the instillation and use of a pen register or trap-and-trace device. A pen register device is installed on a phone and records the numbers of outgoing calls. The trap-and-trace device, the opposite, and is like the caller ID recording the incoming calls.

There are other instances I left unmentioned from the beginning of this text. However, those are some points in history that preceded September 11, 2001, when the intelligence agencies really changed. On September 19, 2001, Attorney General John Ashcroft presented a bill to Congress, demanding that they approve it within the next two days! The quote that follows this statement reminds me of COVID in a sense where, the ruling class is only doing this for the sake of "safety" for citizens. "The intelligence community used the opportunity to roll back the restrictions carefully constructed in the 1970s. New technologies allowed for the massive collection of information and novel data mining methods offered the government powerful new tools" (16). Going back to COVID, one instance right now with how travel is changing and being affected for our "safety".

The 1978 FISA was basically overhauled which ultimately led to broadened scope of data that the government could collect. "Despite Congress's clear statement that FISA was to be the sole means via which domestic electronic surveillance for foreign intelligence purposes could be conducted, President George W. Bush went outside the statute and directed the NSA to begin monitoring citizens' communications" (17-18). So uh, that was what Bush decided to do. Not cool man. Then on October 4, 2001, Bush cleared the NSA to collect two types of info en mass: telephone and internet metadata. This was considered project STELLAR WIND.

Prior to this quote, I have not done any follow up or even research related to this idea when I highlighted this, I added a sticky note writing "birth of algorithms?", guess that would be my partial analysis of this quote too, lol. "Metadata largely consists of information that describes who is communicating; potentially where they are located; the origin, path, and destination of each communication; and the length of exchange. The purpose of collecting it was to give the government the ability to identify terrorist-related activity through social pattern analysis. An important part of the process is called 'contact chaining,' which is the process of building a graph that models communication patterns. Using this metadata, the administration could construct detailed pictures of society, such as who communicated with whom, which people were pivotal in relationships, and how important different individuals were to different groups, and networks. The types of issues people cared about, the activities in which they engaged, how they spent their time in the digital sphere--all this could be learned" (18). Yeah, so another block quote lol, but good shit!

Now on to Project STELLAR WIND, it was highly classified and entirely contained within the execute branch. The American public and Congress did not know that citizens' telephony and internet metadata, in addition to the content of their telephone and internet communications, were being collected, searched and analyzed. However, no court formally approved the program, there was no external oversight. "To the extent that the legal basis of the program was assessed, it was done so inside the executive--which largely approved of its actions" (20). Remember learning checks and balances in the ruling class in elementary? Well sound like they checking they own shit, which Donohue points to more instances in the text.

In the few years following, the NSA was not allowed to read the Office of Legal Counsel's (OLC) assessment of the legal grounds for the program. This information is typically provided to the president and vice president. In early 2004, OLC initiated to have the program re-evaluated. They had concerns about the legality of obtaining internet metadata and the DOJ agreed. Leaders of the DOJ were not interested in signing off on this program as is. After some verbal "contract" dispute, the president signed the authorization without the DOJ's support. The 2001 Authorization for the Use of Military Force (AUMF) expands the president's power firstly, then allows any magnitude of force against those he deems as terrorists or anything of the like! In 2006, the NSA quietly transferred the program that collects telephone metadata to the FISA in the wake of 9/11.

Also, in the name of "safety" any communication with someone abroad American borders is justifiable reasoning to take note of your communications. Cuz everyone in the world wants to dismantle this system right? lol. In April 2007, the director or National Intelligence J.M. McConnell proposed to Congress to amend FISA to simplify the process for the executive branch for targeting U.S. interests internationally. Advance 4 months, we have the Protect America Act (PAA), which altered the language and definitions of FISA, namely "electronic surveillance" narrowing the term to include domestic communications. The PAA prevented the court from supervising the interception of communications that began or ended abroad. The FISA Amendments Act came in 2008, which was a bipartisan solution to the tension among new and emerging technology, civil rights, and national security concerns. Donohue believes this legislation mostly weakened protections for citizens international communication.

Chapter two is simply titled "Metadata" , Donohue goes into how crucial metadata is in providing windows into brains essentially. She then goes on to quote former NSA and CIA director Michael Hayden: "We kill people based on metadata", pretty straight forward but wow! Following that quote she expands on the importance of metadata. "Why is metadata so important? It offers breadth, depth, and consistency, allowing for more accurate descriptive and predictive analyses of who we are, what we have done, and what we are likely to do. During one telephone call to a credit card customer service line, the content may suggest a problem in the recent billing cycle. Repeated calls may signal unresolved financial difficulties" (40). Patterns tell you everything when you meticulously study them!

This idealistically eases me right into another informative piece of the text. "Over time, social scientists have realized that our relationships alter our perceptions and actions. The more we are in contact with others and the more intensive our interactions the more susceptible we are to being influenced by them. Understanding where the high-intensity relationships are for an individual thus gives others insight into where to exert pressure to manipulate others to act in certain ways. Controlling such corridors, or pathways, across the board enhances the potential for social and political control" (40). Intriguingly, after studying these patterns and their relations, experts have concluded that metadata is not a good tool for uncovering terrorist plots. Yet they will not end this programs, which begs the question: "why?".

On June 6, 2013, The Washington Post and The Guardian reported that the U.S. Intelligence community was collecting large amounts of private information on citizens. The NSA and FBI were tapping into the servers of 9 leading US internet providing companies. These entities were pulling audio, video, pictures, emails and documents to track. The press revealed this was a program titled PRISM. The documents showed that PRISM was gathering information from Microsoft, Google, Yahoo!, Facebook, YouTube, PalTalk, AOL, Skype, and Apple. One can only imagine what other information they search and store. In August 2013, the director of National Intelligence, James Clapper, offered more confirmation, that PRISM has indeed been in operation since Congress passed the 2008 FISA Amendments Act.

Section 702 of the FISA Amendment Act details how things should and should not be done. I think it is a fair assumption that loopholes were worked with in this section, this section relates to the targeting of individuals that inclined to being monitored. The government's interpretation of statutory language departs from how FISA traditionally worked. "Some percentage of the communications being monitored is between individuals located within the United States. Additional collection of domestic conversations takes place through the NSA's intercept of what are called multi-communication transactions, or MCTs. An MCT is a bundle of different communications. For example, when a user logs on to e-mail and the server downloads new messages into an inbox, multiple messages may be downloaded at once. If even one of the communications fall within the NSA's surveillance, then all of the communications bundled into the MCT are collected. So if one of the e-mails happens to mention a target or a selector associated with a target as part of the subject, then the NSA obtains a list of all the emails" (60). More block quotes of some fire lol.

Thousands of communications were being collected that did not include a specific target as the sender or receiver in that exchange of communications. Some legislators were privy while some were not privy to exactly what the NSA would indulge in collecting under Section 702. "Even if Congress did not realize what it was authorizing in 2008, the intelligence community kept the legislature informed about the programs underway. At a minimum, therefore, at the point of reauthorization in 2012, Congress agreed to programmatic surveillance. To the extent that Congress later cried foul, the fault appears to be of its own making" (66). Not sure how sold I am on the percentage of ignorant legislators. lol

Literally a couple pages later this quote catches my attention and is relative the previous point. "If some members of Congress abdicated their responsibility by failing to find out what was being done under legislation before the voted for renewal, the FISC, which is familiar with PRISM and upstream collection, did not hold the executive to account. It relied on the NSA to police itself and, when the NSA did not do so, it gave the agency a slap on the wrist and allowed it to continue collection" (68). This alone says to me that there was an overwhelmingly majority who were aware of such actions.

The court had not looked into the possibility of extra curricular actions of the NSA. "In 2011, FISC was troubled by the government's revelations--not least because it was the third time in less than three years in which the NSA had disclosed a 'substantial misrepresentation' on 'the scope of a major collection program.' Either the court lacked intellectual rigor, or the government had made repeated mistakes, or the government had been lying. Regardless, '[t]he government's submissions make clear not only that NSA has been acquiring Internet transactions since before the Court's approval of the first Section 702 certification in 2008, but also that NSA seeks to continue the collection of Internet transactions.' So the NSA had been collecting Internet transactions without judicial approval, entirely outside the FAA--and it sought to continue collection'" (69-70). If this is public and political knowledge and the court deemed it illegal, one would think changes should are to be made? But if you guessed nothing was done, you are correct!

Donohue spends a chapter on the 4th Amendment and its origins. Broadly stated, the 4th Amendment prohibits the use of general warrants. During the War of Independence, the Founders of America, rejected general warrants still influenced by English history and political views. "For centuries, legal scholars had considered promiscuous search and seizure violations of the common law. General warrants were regarded as the worst exercise of tyrannical power" (75). I completely concur with this sentiment. With this being historical contexts, moving forward in time and technology we face the same issues today. "In the post 9/11 world, general warrants have returned with a vengeance, giving rise to serious questions about the constitutionality of the government's action" (76). If one does not believe the government will access any of our information for any reason should be awoken to the 21st century lol.

Going back to the 12th century, the Magna Carta had its objectors to general warrants. "There could be no liberty if the Crown could search any subject's home without cause, seize his papers, and use them to construct charges of criminal activity" (76). To me, that's just an old ass way of saying the ruling class should not be allowed to run in my house and take my shit and use it against me lol. As a citizen it seems harder to be assured, we have any privacy electronically. "The increasing use of general warrants and their expansion to other areas of law -- ranging from the pursuit of individuals accused of crime and recovery of stolen possessions, to economic regulations, weapons, customs, and the suppression of political and religious ideas -- meant that what had been an infrequent experience to which few people had been subjected became a common action to which many were exposed" (77). Of course you never want to speak about big brother because you will certainly be targeted.

The most common argument at the Founding was against promiscuous search and seizure, which revolved around violations of fundamental rights. "The interest stemmed from the right to be secure in one's own abode against unwelcome intrusion. Anti-Federalist writings repeatedly emphasized that an Englishman's home was his castle. The walls served to protect individuals from the outside world. Embedded in this concept were deeper assumptions about what one ought -- and ought not - to be forced to make available to others or the government. Access to one's home suggested access to one's family and friends, bedrooms and closets, diaries and even pockets. One's most intimate secrets would be exposed" (99). Only feels fair that we as citizens be assured by the ruling class that we have a modicum of privacy.

There are two more quotes of Donohue's that I would like to share with you all. They are basically saying the same things but I appreciate her diction in these statements. I completely agree with the idea that there is value to establishing a zone to which no one may reach only under limited conditions. "The creation of private space makes it possible to develop autonomy, ideas, and self. It allows us to question the world and to grow, to learn and to evolve. It is a personal right in that it relates directly to individual health and well-being. It gives us the opportunity to relax, to be unguarded in our actions and ideas, and to question the world and our role in it. The evolution of self requires the ability to have such a protected space, allowing us to interact with our own thoughts, ideas, and beliefs. In this way, it is essential to self-determination" (100). Eloquently spoken!

I saved this quote for last once again because I enjoy it, appreciate it, and agree with it. "The importance of solitude, the necessity of creating space for the evolution of ideas and self, the role of privacy in democratic deliberation and self-determination, the need to be able to create diversity in one's intimate relationships, and the impact of privacy incursions on other liberty rights, such as free association and free speech are all at stake at the moment the information is collected" (131). I certainly am not trying to be negative here or incite fear, however the unlimited scope of the government's power is concerning as we advance into the future.

Once again if you made it this far,

Thank You!

Peace. Love. Blessings.

B. Will

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