the epoch of incredulity

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us…

– A Tale of Two Cities, 1859 [1]

1862: President Abraham Lincoln granted Secretary of War Edwin Stanton authority to exercise “total control of the telegraph lines.” Stanton “used his power over the telegraphs to influence what journalists did or didn’t publish” and “ultimately had dozens of newspapermen arrested on questionable charges.” [2]

1952: President Harry Truman created the National Security Agency in a 1952 memorandum that “placed it under the authority of the Secretary of Defense, and charged it with monitoring and decoding any signal transmission relevant to the security of the United States.” [3]

1972: “In a 1972 case, the Supreme Court invalidated warrantless electronic surveillance of domestic organizations on Fourth Amendment grounds, despite the government’s assertion of a national security rationale.” [4]

1974: “Late in 1974, investigative reporter Seymour Hersh revealed that the CIA was […] conducting illegal intelligence operations against thousands of American citizens.” [5]

1975: Senator Frank Church on NSA technology in 1975: “If this government ever became a tyranny, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny. There would be no way to fight back, because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know. Such is the capacity of this technology.” [6]

1977: “”When the President does it, that means that it is not illegal.” So Richard Nixon infamously defended his approval of a plan to engage in warrantless wiretapping of Americans involved in the antiwar movement of the 1970s.” [7]

1978: “In reaction to the Church Committee reports pushing for oversight, Congress passed the Foreign Intelligence Surveillance Act (FISA) of 1978, which established a secret FISA court responsible for issuing warrants for domestic wiretapping activity.” [8]

1982: “NSA possesses the technology to scan the mass of signals transmitted through various communications systems and then to select out by computer those messages in which certain words or phrases occur.  It is thereby possible for that agency to acquire all communications over a monitored system in which, for example, a person’s name is mentioned.” [9]

1992: “A fair percentage of the digital signals dispatched on planet Earth must pass at some point through the NSA’s big sieve in Fort Meade, Maryland, 12 underground acres of the heaviest hardware in the computing world. There, unless these packets are also encrypted with a particularly knotty algorithm, sorting them back into their original continuity is not very difficult.” [10]

2001: “The collection of email metadata on Americans began in late 2001, under a top-secret NSA program started shortly after 9/11, according to the documents. Known as Stellar Wind, the program initially did not rely on the authority of any court – and initially restricted the NSA from analyzing records of emails between communicants wholly inside the US.” [11]

2004: “George W Bush briefly “discontinued” that bulk internet metadata collection, involving Americans, after a dramatic rebellion in March 2004 by senior figures at the Justice Department and FBI, as the Washington Post first reported.” [12] “The DoJ quickly convinced the Fisa court to authorize ongoing bulk collection of email metadata records. On 14 July 2004, barely two months after Bush stopped the collection, Fisa court chief judge Collen Kollar-Kotelly legally blessed it.” [13]

2005: “Elements of the President’s Surveillance Program became public in 2005, when the New York Times reported the government’s ability to intercept e-mail and phone call content inside the United States without court warrants, sparking controversy.”  [14]

2005: “N.S.A. technicians, besides actually eavesdropping on specific conversations, have combed through large volumes of phone and Internet traffic in search of patterns that might point to terrorism suspects. Some officials describe the program as a large data-mining operation.” [15]

2005: “In 2005, [50 U.S.C. §1861] was also amended to provide special protections for records which were considered particularly sensitive. Specifically, if the records sought are “library circulation records, library patron lists, book sales records, book customer lists, firearms sales records, tax return records, educational records, or medical records containing information that would identify a person,” the application must be approved by one of three high-ranking FBI officers, and cannot be further delegated.” [16]

2006: “The [NSA] has been secretly collecting the phone call records of tens of millions of Americans, […] most of whom aren’t suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.” [17]

2007: “The documents, he said, show that the NSA gained access to massive amounts of e-mail and search and other Internet records of more than a dozen global and regional telecommunications providers.”  [18]

2008: “The second program targets the electronic communications, including content, of foreign targets overseas whose communications flow through American networks. These data are collected pursuant to Section 702 of FISA, which was added by the FISA Amendments Act of 2008. This program acquires information from Internet service providers, as well as through what NSA terms “upstream” collection that appears to acquire Internet traffic while it is in transit from one location to another. Although this program targets the communications of foreigners who are abroad, the Administration has acknowledged that technical limitations in the “upstream” collection result in the collection of some communications that are unrelated to the target or that may take place between persons in the United States.” [19]

2008: “Congress […] approved even broader electronic surveillance in 2008. By law, the targets of that surveillance must be outside the United States, but lawmakers acknowledged that calls and messages of some Americans would be inadvertently intercepted.” [20]

2009: “a DOJ letter in 2009 […] was made available to all members of Congress (under the usual strict secrecy rules), and it makes clear that (a) NSA collects “substantially all” of the domestic phone records of U.S. phone companies, (b) ditto for emails, and (c) they use these records to perform contact chaining.” [21]

2010: “Every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications.” [22]

2011: “According to the 2011 opinion, NSA collected 250 million Internet communications per year using 702 authorities. Of these communications, 91% were acquired “directly from Internet Service Providers.” [23]

2013: “According to a top-secret accounting dated Jan. 9, 2013, the NSA’s acquisitions directorate sends millions of records every day from internal Yahoo and Google networks to data warehouses at the agency’s headquarters at Fort Meade, Md. […] including “metadata,” which would indicate who sent or received e-mails and when, as well as content such as text, audio and video.” [24]

2013: “No one can sue the government over secret surveillance because, since it’s secret, no one can prove his or her calls were intercepted, the Supreme Court ruled Tuesday, throwing out a constitutional challenge to the government’s monitoring of international calls and emails.” [25]

2013: “Burnett interviewed Tim Clemente, a former FBI counterterrorism agent, about whether the FBI would be able to discover the contents of past telephone conversations between the two. He quite clearly insisted that they could.” [26]

2013: “The Washington Post reported on June 6th, 2013, that, “The [NSA] and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs that enable analysts to track foreign targets.” [27]

2013: “The NSA, through secret court orders served to U.S. telecommunications firms, scoops up metadata relating to almost all calls made into and within the U.S., which it can later query as part of a terror investigation.” [28]

2013: “The tactic of collecting everything was unknown to the public until former NSA contractor Edward Snowden leaked word of it to the public.” [29]

2013: “The original press articles and more recent stories have suggested NSA monitors or can monitor the vast majority of the world’s Internet traffic. NSA has stated that it “touches” only 1.6% of Internet traffic and “selects for review” 0.025% of Internet traffic.” [30]

2013: “In Defense Department documents, form No. 1391, page 134, the buildings behind the sign are given the project No. 21078. It refers to the Utah Data Center, four huge warehouses full of servers costing a total of €1.2 billion ($1.56 billion). Built by a total of 11,000 workers, the facility is to serve as a storage center for everything that is captured in the US data dragnet. It has a capacity that will soon have to be measured in yottabytes, which is 1 trillion terabytes or a quadrillion gigabytes. Standard external hard drives sold in stores have a capacity of about 1 terabyte.” [31]

2013: “The government says it stores everybody’s phone records for five years.  [Deputy Attorney General James] Cole explained that because the phone companies don’t keep records that long, the NSA had to build its own database.“ [32]

2013: “According to the [Wall Street] Journal, the NSA “has the capacity to reach roughly 75% of all U.S. Internet traffic.” And while the NSA is only supposed to “target” foreigners, the NSA sometimes “retains the written content of e-mails sent between citizens within the U.S.” [33]

2013: “The communications of Americans in direct contact with foreign targets can also be collected without a warrant, and the intelligence agencies acknowledge that purely domestic communications can also be inadvertently swept into its databases. That process is known as “incidental collection” in surveillance parlance. But this is the first evidence that the NSA has permission to search those databases for specific US individuals’ communications.” [34]

2013: “The [NSA] has circumvented or cracked much of the encryption, or digital scrambling, that guards global commerce and banking systems, protects sensitive data like trade secrets and medical records, and automatically secures the e-mails, Web searches, Internet chats and phone calls of Americans and others around the world.” [35]

2013: “The [NSA], using a combination of jawboning, stealth and legal force, has turned the nation’s Internet and telecommunications companies into collection partners, installing filters in their facilities, serving them with court orders, building back doors into their software and acquiring keys to break their encryption.” [36]

2013: “U.S. agencies collected and shared the personal information of thousands of Americans in an attempt to root out untrustworthy federal workers that ended up scrutinizing people who had no direct ties to the U.S. government and simply had purchased certain books.” [37]

References:

[1] Discovering Dickens – A Community Reading Project. (2007, September 9). Stanford University. Retrieved November 21, 2013, from http://dickens.stanford.edu/dickens/archive/tale/print_issue1_gloss.html

[2] Mindich, D. T. Z. (2013, July 5). Lincoln’s Surveillance State. The New York Times. Retrieved from http://www.nytimes.com/2013/07/06/opinion/lincolns-surveillance-state.html

[3] Barlow, J. P. (1992). Decrypting the Puzzle Palace. Communications of the ACM, (July 1992). Retrieved from https://w2.eff.org/Privacy/Surveillance/?f=decrypting_puzzle_palace.article.txt

[4] Rollins, J. W., & Liu, E. C. (2013, p. 8, citing U.S. v. U.S. District Court, 407 U.S. 297, 321-24 (1972) (“also referred to as the Keith case, so named for the District Court judge who initially ordered disclosure of unlawful warrantless electronic surveillance to the defendants).”). NSA Surveillance Leaks: Background and Issues for Congress (No. R43134). Congressional Research Service. Retrieved from http://www.fas.org/sgp/crs/intel/R43134.pdf

[5] U.S. Senate: Church Committee Created. (n.d.). Retrieved November 21, 2013, from http://www.senate.gov/artandhistory/history/minute/Church_Committee_Created.htm

[6] Barlow, J. P. (1992).

[7] Cole, D. (2006). Reviving the Nixon Doctrine: NSA Spying, the Commander-in-Chief, and Executive Power in the War on Terror. Wash. & Lee J. Civ. Rts. & Soc. Just., 13, 17. (quoting Interview by David Frost with Richard Nixon, former President, United States (May 19, 1977)). Retrieved from: http://works.bepress.com/david_cole/14/

[8] Bill Moyers. (2007, October 26). The Church Committee and FISA. PBS: Bill Moyers Journal. Retrieved from http://www.pbs.org/moyers/journal/10262007/profile2.html

[9] Dycus, S., Berney, A. L., Banks, W. C., & Raven-Hansen, P. (1997). National Security Law (2nd Ed.). Aspen Publishers (pp. 642, 640, 796) (quoting Halkin v. Helms, 690 F.2d 977 (1982) “Plaintiffs filed suit in October 1975, after disclosures by the press and the President’s Commission on CIA Activities Within the United States (the Rockefeller Commission) revealed that government agencies, including the FBI and the CIA, had conducted intelligence operations that resulted in surveillance of United States citizens who opposed the war in Vietnam.” Held: “The executive’s resolution of the issue in favor of secrecy terminates the inquiry under FOIA just as it does under the state secrets privilege.”). Available at http://scholar.google.com/scholar_case?case=12220446803611647907&hl=en&as_sdt=6&as_vis=1&oi=scholar)

[10] Barlow, J. P. (1992).

[11] Greenwald, G., & Ackerman, S. (2013, June 27). NSA collected US email records in bulk for more than two years under Obama. The Guardian. Retrieved from http://www.theguardian.com/world/2013/jun/27/nsa-data-mining-authorised-obama

[12] Greenwald, G., & Ackerman, S. (2013, June 27).

[13] Greenwald, G., & Ackerman, S. (2013, June 27).

[14] Timberg, C., & Nakashima, E. (2013, July 7). Agreements with private companies protect U.S. access to cables’ data for surveillance. The Washington Post. Retrieved from http://www.washingtonpost.com/business/technology/agreements-with-private-companies-protect-us-access-to-cables-data-for-surveillance/2013/07/06/aa5d017a-df77-11e2-b2d4-ea6d8f477a01_story_3.html

[15] Lichtblau, E., & Risen, J. (2005, December 24). Spy Agency Mined Vast Data Trove, Officials Report. The New York Times. Retrieved from http://www.nytimes.com/2005/12/24/politics/24spy.html via http://yro.slashdot.org/story/05/12/25/0029204/nsa-data-mining-much-larger-than-reported

[16] Rollins, J. W., & Liu, E. C. (2013, fn. 30). NSA Surveillance Leaks: Background and Issues for Congress (No. R43134). Congressional Research Service. Retrieved from http://www.fas.org/sgp/crs/intel/R43134.pdf

[17] Cautley, L. (2006, May 11). NSA has massive database of Americans’ phone calls. USA Today. Retrieved from http://usatoday30.usatoday.com/news/washington/2006-05-10-nsa_x.htm via Colbert, S. (2013, June 11). PRISM Surveillance Program. The Colbert Report. Comedy Central. Retrieved from http://www.colbertnation.com/the-colbert-report-videos/427034/june-11-2013/prism-surveillance-program

[18] Nakashima, E. (2007, November 7). A Story of Surveillance. The Washington Post. Retrieved from http://www.washingtonpost.com/wp-dyn/content/article/2007/11/07/AR2007110700006.html (via Greenwald, G. (2013, May 4).

[19] Rollins, J. W., & Liu, E. C. (2013, p. 2). NSA Surveillance Leaks: Background and Issues for Congress (No. R43134). Congressional Research Service. Retrieved from http://www.fas.org/sgp/crs/intel/R43134.pdf

[20] Savage, D. G. (2013, February 26). Supreme Court rules out secret surveillance lawsuits. Los Angeles Times. Retrieved from http://articles.latimes.com/2013/feb/26/nation/la-na-court-wiretaps-20130227

[21] Drum, K. (2013, July 31). Congress knew all about the NSA’s phone record program back in 2009. Mother Jones. Retrieved from http://www.motherjones.com/kevin-drum/2013/07/congress-nsa-surveillance-phone-records

[22] Priest, D., & Arkin, W. (2010, July 19). A hidden world, growing beyond control. The Washington Post. Retrieved from http://projects.washingtonpost.com/top-secret-america/articles/a-hidden-world-growing-beyond-control/print/

[23] Rollins, J. W., & Liu, E. C. (2013, p. 7, citing Foreign Intelligence Surveillance Court Memorandum Opinion, Judge John Bates, October 3, 2011, at 29, available at https://www.eff.org/file/37548#page/1/mode/1up ).

[24] Gellman, B., & Soltani, A. (2013, October 31). NSA infiltrates links to Yahoo, Google data centers worldwide, Snowden documents say. The Washington Post. Retrieved from http://www.washingtonpost.com/world/national-security/nsa-infiltrates-links-to-yahoo-google-data-centers-worldwide-snowden-documents-say/2013/10/30/e51d661e-4166-11e3-8b74-d89d714ca4dd_story.html

[25] Savage, D. G. (2013, February 26). Supreme Court rules out secret surveillance lawsuits. Los Angeles Times. Retrieved from http://articles.latimes.com/2013/feb/26/nation/la-na-court-wiretaps-20130227 ; But see Rushe, D. (2013, November 22). NSA bulk data collection violates constitutional rights, ACLU argues. The Guardian. Retrieved from http://www.theguardian.com/world/2013/nov/22/nsa-bulk-data-collection-constitutional-rights-aclu (“ACLU now argues that it has standing to sue because the Fisa court order showed that its phone records were collected by the government.”)

[26] Greenwald, G. (2013, May 4). Are all telephone calls recorded and accessible to the US government? The Guardian. Retrieved from http://www.theguardian.com/commentisfree/2013/may/04/telephone-calls-recorded-fbi-boston

[27] Rollins, J. W., & Liu, E. C. (2013, p. 6).

[28] Perez, E., & Gorman, S. (2013, June 15). Phones Leave a Telltale Trail. Retrieved from http://online.wsj.com/news/articles/SB10001424127887324049504578545352803220058

[29] Yost, P. (2013, July 18). Hostile Hill territory on NSA surveillance issue. Yahoo News. Retrieved from http://news.yahoo.com/hostile-hill-territory-nsa-surveillance-issue-061859478.html

[30] Rollins, J. W., & Liu, E. C. (2013, p. 6).

[31] Poitras, L., Rosenbach, M., Schmid, F., Stark, H., & Stock, J. (2013, July 1). NSA “Alliances With Over 80 Major Global Corporations.” Spiegel Online. Retrieved from http://www.spiegel.de/international/world/secret-documents-nsa-targeted-germany-and-eu-buildings-a-908609-3.html

[32] Yost, P. (2013, July 17). NSA spying under fire: “You’ve got a problem’. The Big Story. Retrieved from http://bigstory.ap.org/article/more-questions-congress-surveillance ; See also Sasso, B. (2013, November 19). Senators: “No evidence” NSA phone sweeps are useful. The Hill. Retrieved November 20, 2013, from http://thehill.com/blogs/hillicon-valley/190787-senators-no-evidence-nsa-phone-sweeps-are-useful

[33] Lee, T. B. (2013, August 20). Report: NSA can “reach roughly 75% of all U.S. Internet traffic.” Washington Post. (citing Gorman, S. & Valentino-Devries, J. (2013, August 20). “New Details Show Broader NSA Surveillance Reach. Wall Street Journal.) Retrieved from http://www.washingtonpost.com/blogs/the-switch/wp/2013/08/20/report-nsa-can-reach-roughly-75-of-all-u-s-internet-traffic/

[34] Ball, J., & Ackerman, S. (2013, August 9). NSA loophole allows warrantless search for US citizens’ emails and phone calls. The Guardian. Retrieved from http://www.theguardian.com/world/2013/aug/09/nsa-loophole-warrantless-searches-email-calls

[35] Larson, N. P., Jeff, & Shane, S. (2013, September 5). N.S.A. Able to Foil Basic Safeguards of Privacy on Web. The New York Times. Retrieved from http://www.nytimes.com/2013/09/06/us/nsa-foils-much-internet-encryption.html

[36] Shane, S. (2013, November 2). No Morsel Too Minuscule for All-Consuming N.S.A. The New York Times. Retrieved from http://www.nytimes.com/2013/11/03/world/no-morsel-too-minuscule-for-all-consuming-nsa.html

[37] Taylor, M. (2013, November 14). Americans’ personal data shared with CIA, IRS, others in security probe. McClatchyDC. Retrieved from http://www.mcclatchydc.com/2013/11/14/208438/americans-personal-data-shared.html

* This post reflects collaborative research and discussion with my classmates Brian J. Davidson and Gabe Gossett, and was developed as background research for class projects in November and December 2013.

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