In These Times We Can’t Blindly Trust Government to Respect Freedom of Association

One of my friends, who works in a strategic role at American Federation of Teachers, is Iranian-American. I asked him a few weeks ago whom he called in Iran; if I remember correctly (I’ve been asking a lot of Iranian-Americans whom they call in Iran) he said it was mostly his grandmother, who’s not a member of the Republican Guard or even close. Still, according to the statement that Dianne Feinstein had confirmed by NSA Director Keith Alexander, calls “related to Iran” are fair game for queries of the dragnet database of all Americans’ phone metadata.

Chances are slim that my friend’s calls to his grandmother are among the 300 identifiers the NSA queried last year, unless (as is possible) they monitored all calls to Iran. But nothing in the program seems to prohibit it, particularly given the government’s absurdly broad definitions of “related to” for issues of surveillance and its bizarre adoption of a terrorist program to surveil another nation-state. And if someone chose to query on my friend’s calls to his grandmother, using the two-degrees-of-separation query they have used in the past would give the government — not always the best friend of teachers unions — a pretty interesting picture of whom the AFT was partnering with and what it had planned.

In other words, nothing in the law or the known minimization rules of the Business Records provision would seem to protect some of the AFT’s organizational secrets just because they happen to employ someone whose grandmother is in Iran. That’s not the only obvious way labor discussions might come under scrutiny; Colombian human rights organizers with tangential ties to FARC is just one other one.

When I read labor organizer Louis Nayman’s “defense of PRISM,” it became clear he’s not aware of many details of the programs he defended. Just as an example, Nayman misstated this claim:

According to NSA officials, the surveillance in question has prevented at least 50 planned terror attacks against Americans, including bombings of the New York City subway system and the New York Stock Exchange. While such assertions from government officials are difficult to verify independently, the lack of attacks during the long stretch between 9/11 and the Boston Marathon bombings speaks for itself.

Keith Alexander didn’t say NSA’s use of Section 702 and Section 215 have thwarted 50 planned attacks against Americans; those 50 were in the US and overseas. He said only around 10 of those plots were in the United States. That works out to be less than 20% of the attacks thwarted in the US just between January 2009 and October 2012 (though these programs have existed for a much longer period of time, so the percentage must be even lower). And there are problems with three of the four cases publicly claimed by the government — from false positives and more important tips in the Najibullah Zazi case, missing details of the belated arrest of David Headley, to bogus claims that Khalid Ouazzan ever planned to attack NYSE. The sole story that has stood up to scrutiny is some guys who tried to send less than $10,000 to al-Shabaab.

While that doesn’t mean the NSA surveillance programs played no role, it does mean that the government’s assertions of efficacy (at least as it pertains to terrorism) have proven to be overblown.

Yet from that, Nayman concludes these programs have “been effective in keeping us safe” (given Nayman’s conflation of US and overseas, I wonder how families of the 166 Indians Headley had a hand in killing feel about that) and defends giving the government legal access (whether they’ve used it or not) to — among other things — metadata identifying the strategic partners of labor unions with little question.

And details about the success of the program are not the only statements made by top National Security officials that have proven inaccurate or overblown. That’s why Nayman would be far better off relying on Mark Udall and Ron Wyden as sources for whether or not the government can read US person emails without probable cause than misstating what HBO Director David Simon has said (Simon said that entirely domestic communications require probable cause, which is generally but not always true). And not just because the Senators are actually read into these programs. After the Senators noted that Keith Alexander had “portray[ed] protections for Americans’ privacy as being significantly stronger than they actually are” — specifically as it relates to what the government can do with US person communications collected “incidentally” to a target — Alexander withdrew his claims.

Nayman says, “As people who believe in government, we cannot simply assume that officials are abusing their lawfully granted responsibility and authority to defend our people from violence and harm.” I would respond that neither should we simply assume they’re not abusing their authority, particularly given evidence those officials have repeatedly misled us in the past.

Nayman then admits, “We should do all we can to assure proper oversight any time a surveillance program of any size and scope is launched.” But a big part of the problem with these programs is that the government has either not implemented or refused such oversight. Some holes in the oversight of the program are:

  • NSA has not said whether queries of the metadata dragnet database are electronically  recorded; both SWIFT and a similar phone metadata program queries have been either sometimes or always oral, making them impossible to audit
  • The FISC does not itself audit this metadata access and — given Dianne Feinstein’s uncertainty about what queries consist of — it appears neither do the Intelligence Committees; Adam Schiff recommended this practice but Keith Alexander was resistant
  • The government opposed mandated Inspector General reviews of the Section 215 use in the last PATRIOT Act renewal; while DOJ’s Inspector General is, on his predecessors own initiative, reviewing its use, he’s only now reviewing the program as it existed four years ago
  • DOJ and CIA’s Inspectors General have limited ability to review what FBI and CIA do with the unminimized data they get form NSA’s Section 702 collection (though DOJ’s IG does have the authority to review what the NSA does)
  • The government refuses to count (and doesn’t appear to document) what happens with the US person information “incidentally” collected under Section 702 that is subsequently searched or read

That’s just a partial list. And all that’s before you get to things we know the government does with this data, like keeping encrypted communications indefinitely, treating threats to property as threats to human life, and only respecting attorney-client privilege for indicted defendants (Note, the first two of these are some of the exceptions to Simon’s assertion that entirely domestic communications require probable cause).

How does someone looking to “level[] the playing field between concentrated privilege and the rest of us” defend a program that secretly treats corporate property as human life?

Ultimately, though, Nayman seems most worried about empowering the dwindling TeaParty movement.

So, let’s be very careful about doing the Tea Party’s dirty work by running to the defense of every leaker with the inclination and means to poke a stick in the government’s eye.

This displays another misunderstanding about who on the right really opposes these programs. While Rand Paul has — as he did earlier with the drone program — offered clown show legislation to play off worries about these programs, Justin Amash is the TeaParty figure most legitimately active in countering these programs (and he has been disempowered by his own party). Amash is joined in his efforts by progressive stalwarts like Barbara Lee and Zoe Lofgren, along with a fascinating mix of others, including paleocons. In the Senate, Mike Lee has been the most effective quiet champion of efforts to bring more oversight to the program, but he has been joined by Lisa Murkowksi and Dean Heller. And often not Rand Paul.

Meanwhile, Nayman is joined in his position attacking Edward Snowden by TeaParty Caucus Chair Michele Bachmann.

One of the biggest problems with blindly trusting the government on these programs is that they’ve secretly breached First Amendment Freedom of Association for some, including Iranian-Americans, those who encrypt their email, and those who might threaten corporate property. Without unfettered Freedom of Association, the power of labor unions and all others fighting for the rights of working men and women is at risk.

Nayman may be comfortable with that risk so long as we have a Democratic president (though teachers unions are one of the labor groups that should not be). But one President’s labor organizer may be the next President’s terrorist. And with this dragnet infrastructure in place, it will be far too late at that point to reverse this power grab.

39 replies
  1. Casual Observer says:

    It had never occurred to me that ‘freedom of association’ could refer to listserves, social media, email groupings, and I guess comment sections, for that matter.

  2. orionATL says:

    “..Nayman says, “As people who believe in government, we cannot simply assume that officials are abusing their lawfully granted responsibility and authority to defend our people from violence and harm.” …

    only a fool could believe something like this,

    or a scoundrel who sees some advantage for himself in saying it.

  3. lefty665 says:

    “And if someone chose to query on my friend’s calls to his grandmother, using the two-degrees-of-separation query they have used in the past would give the government — not always the best friend of teachers unions — a pretty interesting picture of whom the AFT was partnering with and what it had planned.”

    And, if you had ever contacted your friend by phone or electronically you would be one-degree-of-separation, and all your contacts (ever) two-degrees.

    Gets to be a pretty broad web very quickly.

  4. orionATL says:

    “… And if someone chose to query on my friend’s calls to his grandmother, using the two-degrees-of-separation query they have used in the past would give the government — not always the best friend of teachers unions — a pretty interesting picture of whom the AFT was partnering with and what it had planned…”

    since you called your friend, would that not make all the communications of persistent government critic emptywheel obtainable?

  5. der says:

    Hard to find anyone agreeing with Nayman in the comments of ITT. This seems to sum up many, of course without the “fuck!” and the “what the fuck!!!”:

    “Wow, this really misses the point. Seeing the state as one, integrated, all-inclusive operation is a pretty ignorant understanding of politics. One can oppose the reactionary surveillance wing of the state while simultaneously believing that the social democratic aspects of it should be maintained (and strengthened).”

    “I see that Nayman’s articles seem to be mostly about getting out the vote for Obama. I’ve seen this type of “union organizer” before, who’s primary role is to provide a left cover for the Democrats. Remember, just because someone is presented as a “long time union organizer” by ITT doesn’t mean that they’re magically correct on everything. The labor movement, and especially its professionalized staffer clique, is not perfect by a long shot.”

  6. phred says:

    The point of the constitution was that “we can’t blindly trust government” at any time about anything. Checks and balances. Public servants. Private citizens. Juries of one’s peers and the electorate the final arbiters of public will.

    Democracy cannot function when government officials and their contractors shroud their every day activities in secret.

  7. john francis lee says:

    Clearly all communications should be encrypted. That has always been the case. The DARPA-designed protocols purposefully left out that essential ingredient. Now, when the criminal USG has made plain to all – thanks to the diligence of our hero, Edward Snowden and to him alone – just what a force for evil like itself can do, more and more internet communications will be encrypted.

    According to the NSA’s maximizing/minimizing regime, all encrypted mail will be stored in the new Utah storage facility and the others inevitably required. When all communications are encrypted, as they should have been from the get-go, all communications will be stored forever.

    The people in power are insane. Their in’security’ regime requires unbounded storage for all communications, their energy regime requires the total conversion of all the worlds’ hydrocarbons to CO2, their ‘economic’ regime requires unbounded growth, and their military – ‘defense’ – regime requires ‘full spectrum’ dominance of the whole planet.

    When these regimes all collapse … our collapse will be total.

    Maybe we should remove these people from power first ?

  8. LeMoyne says:

    @P J Evans: You make a core point P J – if the gov’t sucks it in and won’t give it back then that is a seizure. Tom Drake put it well (at the Restore the Fourth rally in DC): First they seize it then they search it at their leisure.

  9. orionATL says:


    “..“I see that Nayman’s articles seem to be mostly about getting out the vote for Obama. I’ve seen this type of “union organizer” before, who’s primary role is to provide a left cover for the Democrats…”

    precisely what i expected, an obama royalist whom the whitehouse encoraged to speakout as part of its “operation disinformation” campaign (or would that be “operation lull-the-fools”).

  10. Pajarito says:

    My employer is Pakistani-American, and has family in Pakistan. I would assume he calls them. He also went on Hajj to Mecca. We telephone and email, of course. I also belong to some groups interested in seeing that the laws of this country are obeyed when it comes to commons: natural resources like air, water, open space. So guess by the 2nd degree separation of secret law, I’m fair game as are all my associates.

    Chilling, especially in these days when being an environmentalist is equated with teraist.

    So to be above suspicion in this brave new world, you have to live an uninteresting life with few passions and real commitments, likely akin to those who, secretly, created this surveillance uber alles state.

    Can we haz a government that can read and understand the constitution, pleze? (encryption :))

  11. orionATL says:


    old ben

    was right then

    and he’s right for these times :)

    the problem i see here is the lack of a political power center in this society that can bring enough power to bear to bring this beast to heel. it’s not going to be the presidency, or the judiciary.

    congress is fickle and freightened on national security v constitution.

    the various companies in the communications industry certainly don’t seem exercised about the nsa’s depredations or inclined to offer opposition.

    various ethnic groups are probably quite conservative and largely trusting on this issue.

    so who’s left – the students and the mainstream churches?

  12. Nell says:

    Thanks for this, EW. I see that ITT published a response to Nayman’s piece by Zaid Jilani; it’s worthwhile, but yours is a vital addition, especially for the detailed rundown of the holes in “oversight” of the NSA-FBI programs.

    On the one hand, there’s a “you kids get off my lawn” vibe to Nayman’s piece. He is old enough to have a son or daughter who’s a Teamster. But he must be almost another generation younger than me, because no one who was old enough to have followed the Viet Nam war and the lying and domestic repression that accompanied it, COINTELPRO, Watergate, and the Church committee would have been able to write that passage about “we cannot simply assume that officials are abusing their responsibility”. Srsly, dude? Do you take that same attitude toward school boards? Principals? How about Republican-appointed NLRB members?

  13. emptywheel says:

    @Nell: I half wonder if he’s associated w/CWA, in which case his defense of the program would be understandable.

  14. emptywheel says:

    @Pajarito: The funny thing is, at least as described, for Pakistani-Americans to get sucked up they need to have a tie to a terrorist phone number. That’s one of the reasons I’m so alarmed by the “related to Iran” issue, bc simply in applying this test to a nation-state yet retaining the “related to” standard, you’re likely to suck in far more people.

    Particularly given that sanctions are directed at all of Iran; there’s nothing like that in Pakistan.

  15. lefty665 says:

    EW, Those 2nd degree contacts can get out of hand in a hurry. A crude example:

    1 initial suspect
    100 1st degree contacts (assumption???)
    10,000 2nd degree contacts (also 100)
    10,101 total searches

    if 1% hit rate on original searches then

    101 secondary suspects generated
    10,100 1st degree contacts
    1,010,000 2nd degree contacts
    1,020,200 total searches
    314,000,000 US population
    308 searches needed to cover the entire country

    I recall a 300 number being thrown around as annual authorized searches. If that is relevant, in this rough example it looks like we all could get swept up about once a year in 2nd degree searches that use the initial search to generate one set of secondary 2nd degree searches.

    Obviously a wild arsed guess on average contacts. There must be damping to keep the searches from running away, and things like filtering dupes, or following patterns, or…?

    How likely are we to go from having our data “collected” to being individually scrutinized? Is the small number of authorized “searches” really just a math joke on us?

    “Big data” is easy to say. Anyone out there have experience in large data sets and search algorithms that generate secondary searches?

  16. lefty665 says:

    @emptywheel: And the searchable data set grows inexorably, by the billions, day by day.

    Looks like they wanted the world and they got it. A cryppie’s wet dream. Any bets the voltage will drop all across the country when Beef Hollow Rd. lights up?

  17. earlofhuntingdon says:

    Nayman sounds like a tool. When will these people learn that it’s all give and no take in these deals for support for the unsupportable. It reminds me of Wilde’s description of fox hunting: the unspeakable in full pursuit of the uneatable.

  18. eh says:


    I haven’t found any reason to believe that the intelligence agencies aren’t using the same kinds of commodity graph searching databases that allow Facebook et al to work with a user’s connections to other people. Here’s a relatively accessible explanation and illustration of the technology here:

    As you may see, connections are very easily searched and represented using these methods, though at the end of the day we would need to know what they mean by “a search.” Degrees of separation are very easily dealth with here, and the connections of ancillary people are very easy to sweep up.

    Think of it this way: what if the intelligence agencies have created their own “Facebook” that lets them travel the connections between “users” (people whose data has been saved)? Facebook’s own Graph Search lets their users find people with plain text searches on the order of “Unmarried men near Topeka who like guns and getting drunk.” Just add software that automatically categorizes data and similar queries can be made against arbitrary groups of people, and meanwhile the only difference between the NSA’s facebook and Facebook’s, not to mention the integrity of the data itself (the reliability of connections) is that there is no “Forgot Password” link.

  19. P J Evans says:

    Some people see all union members as willing tools of the Democratic Party – never mind reality. (These are people who also see all government employees, as well as all union members, as lazy and overpaid.)

  20. P J Evans says:

    Doing genealogy – its’ easy, easy, easy to keep adding people to the data files. What’s hard is having a limit, knowing where it is, and stopping.

  21. joanneleon says:

    Sounds like Nayman loves the “Trust Us” argument. Really disappointing. Everything is partisan in some eyes.

    In reading a der Spiegel article today, I really did not like that statement about facebook and webmail data. I don’t know if it was written or translated poorly, but that’s not the way we were told it works. We were told that people are “selected” based on metadata, and then facebook data could be retrieved via PRISM. This sounds more like screening facebook data via packets in telecom lines.

    In an interview to be published in this week’s issue of SPIEGEL, American intelligence agency whistleblower Edward Snowden criticizes the methods and power of the National Security Agency. Snowden said the NSA people are “in bed together with the Germans.” He added that the NSA’s “Foreign Affairs Directorate” is responsible for partnerships with other countries. The partnerships are organized in a way that authorities in other countries can “insulate their political leaders from the backlash” in the event it becomes public “how grievously they’re violating global privacy.” Telecommunications companies partner with the NSA and people are “normally selected for targeting” based on their “Facebook or webmail content.”

  22. joanneleon says:

    I do hope that out of all these leaked documents come some specific examples, with names or something, of surveillance, because otherwise I don’t think this is going to have the kind of impact on the public that it should. A lot of people seem to have a lack of imagination and a lot of trust.

  23. Jessica says:

    “One of the biggest problems with blindly trusting the government on these programs…”

    It occurs to me that people such as Mr. Nayman more often blindly trust their party line, than even the government.

  24. lefty665 says:

    @eh: Thank you for the gracious response. All downstream from Accumulo, Hadoop and other software. Got my fingers in gear before my brain, duh.

    Nice link, good explanation, and the pseudo code will almost run. Thanks for that too.

  25. lefty665 says:

    @P J Evans: But if I keep going long enough I’m sure I’ll find a king or queen or something in there. It’s been all “something” so far. Web’s sure been great for genealogy.

  26. Jeffrey Kaye says:

    What der said.

    Don’t know Nayman, but he appears to be an AFT social democrat of the Al Shanker type. In other words, no friend of the working class, but a shill for the bosses’ govt.

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