NSA's Preference for Metadata

As for the "damage" from unauthorized disclosures of these programs over the past half-year largely from documents leaked by Snowden, defenders of NSA bulk collection are hewing to NSA's talking points (recently acquired via a Freedom of Information request). Here are three of the 13 points listed:

--DISCLOSURES HAVE DONE IRREVERSIBLE AND SIGNIFICANT DAMAGE TO SECURITY.

--EVERY TIME THERE ARE DISCLOSURES, IT MAKES OUR JOB HARDER.

--OUR ADVERSARIES ARE PAYING ATTENTION AND WE ALREADY SEE SIGNS THEY ARE MAKING ADJUSTMENTS." [From NSA's "MEDIA LEAKS ONE CARD"]

But these "talking points" obscure the real questions posed by the bulk collection of metadata on virtually all human beings who communicate through electronic means, from telephone to e-mail: What is the real threat posed to personal privacy by the persistent, bulk collection of metadata of innocent people? And what is the real damage from disclosure of this reality?

As for legality, do not be fooled by allusions to the infamous Smith v. Maryland (1979) court decision -- which says Americans surrender their expectation of privacy over call data held by phone companies -- upon which the Government rests its case for claiming its NSA metadata collection is legal.

That case had absolutely nothing to do with the persistent, bulk collection of metadata. The citation amounts to a stall tactic, with the Government knowing it takes just about forever for the federal court system to adjudicate the legality of such a claim -- while the collection will continue.

Also, be skeptical about the Government's claims about massive (but indeterminate) damage to national security. According to the rules for classifying material, it must have the potential to cause EXCEPTIONALLY GRAVE DAMAGE to the national security of the United States (TOP SECRET), SERIOUS DAMAGE to the national security (SECRET), or to cause DAMAGE to the national security (CONFIDENTIAL stuff), if divulged to the public at large.

It would be difficult for anyone in a court of law to make the case that public disclosure of NSA's intrusive collection has done any of those things. Despite the NSA's "talking points," no clear-cut evidence has been presented supporting the claims of "IRREVERSIBLE AND SIGNIFICANT DAMAGE."

But here is a real leak that caused "exceptionally grave damage" to the national security: On the night of 9/11, Sen. Orin Hatch, R-Utah, told The Associated Press, "They have an intercept of some information that includes people associated with [Osama] bin Laden who acknowledged a couple of targets were hit."

Hatch made similar comments to ABC News and said the information had come from officials at the CIA and FBI. We never heard bin Laden or any of his close associates on a satellite phone again. THAT was a true compromise of security. But nothing happened to Sen. Hatch.

Has Snowden caused great embarrassment, especially about monitoring the communications of various high-level persons in foreign countries, such as Germany and Brazil? Yes, but do any of those countries pose a security threat to the United States? None of which I am aware.

And, contrary to the alarmist claims of the NSA "talking points," the damage to intelligence sources and methods aimed at legitimate foreign targets is, so far, minimal. Part of the reason is because, quite simply, there are no current options to avoid either phones or the Internet or travel, all of which are heavily monitored. Alternatives aimed at evading monitoring are fragile, costly, inconvenient, and usually ineffective.

Another irony about all the teeth-gnashing over Snowden's revelations is this: As noted elsewhere, the U.S. government is sure to improve -- not degrade -- its intelligence gathering/analysis if it abandons the kind of mass metadata collection and storage that serves mainly to drown analysts in data.

The current system has been shown to be ineffective in identifying terrorists, raising the question: How does one damage something that is already "ineffective"?
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*Kirk Wiebe is a retired National Security Agency senior analyst and recipient of that Agency's second highest award -- the Meritorious Civilian Service Award. As an employee of NSA, he has sworn to uphold the U.S. Constitution against all enemies, foreign and domestic. He has worked with colleagues Bill Binney, Ed Loomis, Tom Drake and Diane Roark to oppose NSA corruption and over-surveillance since 2001.