Since it's been asked by several OPs, where I personally draw the line on electronic surveillance
I've seen several OPs to this effect, so I thought I'd put my own feelings down on what I do and don't think the government should do.
Preliminary thought 1: in all of these situations I've tried to imagine President Ted Cruz, CIA director Jeb Bush, etc.
Preliminary thought 2: as a general point, we're getting way ahead of the known facts here, and neither you nor I actually know if these lines have or haven't been crossed by the actual programs in existence
Preliminary thought 3: personally, I distinguish between two "domains" of surveillance: law enforcement, and national security. In general, the first should have its antennas pointed at the US, and the second should have them pointed outside of the US, but modern communication technologies muddy that and there's no way of avoiding that fact (something like half of the world's Internet traffic passes through Fairfax County, VA, after all). Furthermore, some individuals and plots are both national security and law enforcement concerns, so I added a third domain of where these two meet.
Law Enforcement
General thoughts: Law enforcement should be able to target, with appropriate safeguards, anyone in its jurisdiction, be they citizens or non-citizens.
Law enforcement surveillance Recursion is OK with:
1. (This should be a no-brainer for everybody): specifically targeted surveillance pursuant to a warrant against specific individuals as part of an investigation of a specific crime or conspiracy. I hope, at least, we're all on board with this: after getting a warrant, the FBI can tap someone's phone or force their email provider to let them read their emails.
2. "John Doe" surveillance of specific communications channels. Think "The Wire": if a given payphone is routinely used to make drug deals, say, the FBI can with court approval set up a steady "alert" system that allows monitoring of that channel only for the purposes of that investigation (if they find another crime in the process, tough shit: that's not what they were authorized to search for, though they can still use that information as background in another investigation).
3. As far as I know, that's it
National Security
General thoughts: as far as I'm concerned, it's the spooks' job to get as much information about non-citizens as they feel they need to. I know many here disagree. But, for me, except where forbidden by treaty (and that's actually quite a lot where diplomatic channels are concerned) I figure pretty much anything goes.
Communications between two foreign citizens in foreign countries, as I mentioned above, actually physically passes through the US all the time.If that can be reliably segregated and tapped, then as far as I'm concerned the NSA and CIA can have a field day with it.
The Nexus of Law Enforcement and National Security
Ah, there's the rub. What about a US citizen communicating with a non-US citizen? Or a plot involving US citizens and foreign nationals? This gets to several other discussions we've been having on DU (cf drones, etc.): where does national security stop and law enforcement start? A plot among American citizens to commit a terrorist act is entirely the domain of US law enforcement, I think we all agree. But the national security apparatus, if it's doing it's job, will learn things that the law enforcement apparatus won't, because the FBI isn't spying on Yemen. So under what circumstances should the one use the resources of the other? There are, fortunately, still firewalls between the law enforcement and national security organizations, though they have been greatly weakened since 9/11 (and, in fairness, they were arguably too strong or at least too inflexible before then).
It's the NSA, CIA, DIA, etc's job to monitor and disrupt the hypothetical cell of Yemenis who are plotting to do something horrible in the US, but what happens when, in the course of their conspiracy, they enlist the help of a US citizen? This is the fundamental problem, because now the substantively stronger and less restrained national security surveillance system has the potential to target an American Citizen, which is not what its purpose is. If I had to sum up the major dilemma of this question in a sentence, it would be that.
It is no concern of the NSA's that I am calling my uncle. I think we all agree with that. I think (and I know many may disagree) that it is their concern that I'm calling someone they know to be part of a terrorist cell in Yemen. And even that is more complex because one of those cell members may be in Cleveland right now. And here's where the oh-so-problematic heuristics come in.
The guy in Cleveland doesn't have a single channel of communication; he may buy a burner and get a new hotmail address every week. So while the NSA doesn't have a channel to tap here, they may in many cases find a pattern of channels that they can monitor. This is all that talk about "meta-data": collect everybody's communications traffic, and find the patterns you're looking for (for the sake of argument, grant that these patterns exist and are more or less find-able; people who know much more about SIGINT than I do assure me they do and are).
So in the perfect world, the CIA looks at those patterns as part of their investigations (remember, there are plenty of cases where they will be monitoring the Yemeni citizen in Cleveland anyways), and if they notice a person who is outside of their scope (ie, a US Citizen), they bring law enforcement in, and the first three limits kick in with their investigation.
Heuristics. The NSA has the info, and they are legally limited from using it except in accordance with their charter. And that is the weakness that I have to acknowledge: do I trust President Cruz's NSA director to have this information and not use it for other purposes? But then again, for that matter, do I trust his FBI director not to search my home without a warrant?
Anyways, to summarize:
Recursion is uneasily OK with the idea of monitoring communications traffic for patterns that are then used to investigate further as long as that monitoring is limited in its utility by a controlling warrant. (This, incidentally, is the reason the FISA warrant system is, for all its flaws, much better than what we had before: not because I think the warrant will one day be denied -- let's not kid ourselves -- but because it is a systemic limit to what for and by whom the obtained information can be used.) Recursion worries that this system could be misused in contravention of law, but Recursion also worries that about the entire Federal law enforcement apparatus.
= new reply since forum marked as read
