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<nettime> Yochai Benkler: Time to tame the NSA behemoth
nettime's_chronicler on Fri, 13 Sep 2013 17:25:44 +0200 (CEST)

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<nettime> Yochai Benkler: Time to tame the NSA behemoth


Time to tame the NSA behemoth trampling our rights

   From leaks and Fisa court papers, it's clear the NSA is a bloated
   spying bureaucracy out of control. It can't be reformed by insiders

   Yochai Benkler

   The spate of new NSA disclosures substantially raises the stakes of
   this debate. We now know that the intelligence establishment
   systematically undermines oversight by lying to both Congress and
   the courts. We know that the NSA infiltrates internet
   standard-setting processes to security protocols that make
   surveillance harder. We know that the NSA uses persuasion,
   subterfuge, and legal coercion to distort software and hardware
   product design by commercial companies.

   We have learned that in pursuit of its bureaucratic mission to obtain
   signals intelligence in a pervasively networked world, the NSA has
   mounted a systematic campaign against the foundations of American
   power: constitutional checks and balances, technological leadership,
   and market entrepreneurship. The NSA scandal is no longer about
   privacy, or a particular violation of constitutional or legislative
   obligations. The American body politic is suffering a severe case of
   auto-immune disease: our defense system is attacking other critical
   systems of our body.

   First, the lying. The National Intelligence University, based in
   Washington, DC, offers a certificate program called the denial and
   deception advanced studies program. That's not a farcical sci-fi
   dystopia; it's a real program about countering denial and deception by
   other countries. The repeated misrepresentations suggest that the
   intelligence establishment has come to see its civilian bosses as
   adversaries to be managed through denial and deception.

   We learned months ago that the Director of National Intelligence
   James Clapper lied under oath to Congress. Now, we know that
   General Keith Alexander filed a "declaration" (which is like testifying
   in writing), asserting an interpretation of violations that the court
   said "strains credulity". The newly-disclosed 2009 opinion includes a
   whole section entitled "Misrepresentations to the Court", which
   begins with the sentence:

     The government has compounded its noncompliance with the court's
     orders by repeatedly submitting inaccurate descriptions of the alert
     list process to the FISC.

   General Alexander's claim that the NSA's vast numbers of violations
   were the consequences of error and incompetence receive derisive
   attention. But this claim itself was in a court submission intended to
   exculpate the agency from what would otherwise have been an intentional
   violation of the court's order. There is absolutely no reason to
   believe the claims of incompetence and honest error; there is more
   reason to assume that these are intended to cover up a worse truth:
   intentional violations.

   Second, the subversion. Last week, we learned that the NSA's strategy
   to enhance its surveillance capabilities was to weaken internet
   security in general. The NSA infiltrated the social-professional
   standard-setting organizations on which the whole internet relies, from
   National Institute of Standards and Technology to the Internet
   Engineering Task Force itself, the very institutional foundation of the
   internet, to weaken the security standards. Moreover, the NSA combined
   persuasion and legal coercion to compromise the commercial systems and
   standards that offer the most basic security systems on which the
   entire internet runs. The NSA undermined the security of the SSL
   standard critical to online banking and shopping, VPN products central
   to secure corporate, research, and healthcare provider networks, and
   basic email utilities.

   Serious people with grave expressions will argue that if we do not
   ruthlessly expand our intelligence capabilities, we will suffer
   terrorism and defeat. Whatever minor tweaks may be necessary, the
   argument goes, the core of the operation is absolutely necessary and
   people will die if we falter. But the question remains: how much of
   what we have is really necessary and effective, and how much is
   bureaucratic bloat resulting in the all-to-familiar dynamics of
   organizational self-aggrandizement and expansionism?

   The "serious people" are appealing to our faith that national security
   is critical, in order to demand that we accept the particular
   organization of the Intelligence Church. Demand for blind faith
   adherence is unacceptable.

   What did we actually know about what we got in exchange for undermining
   internet security, technology markets, internet social capital, and the
   American constitutional order? The intelligence establishment grew by
   billions of dollars; thousands of employees; and power within the
   executive. And we the people? Not so much. Court documents released
   this week show that after its first three years of operation, the best
   the intelligence establishment could show the judge overseeing the
   program was that it had led to opening "three new preliminary
   investigations". This showing, noted Judge Walton in his opinion, "does
   not seem very significant".

   If this was the best the intelligence community could put on the table
   when it faced the risk of judicial sanction, we can assume that all the
   hand-waving without hard, observable, testable facts is magician's
   patter, aimed to protect the fruits of a decade's worth of bureaucratic
   expansionism. Claims that secrecy prevents the priesthood from
   presenting such testable proof appeal to a doctrine of occult
   infallibility that we cannot afford to accept.

   In August, 205 members of the House voted in favor of the
   Amash-Conyers Amendment that would have rewritten Section 215 of the
   Patriot Act, the section used to justify bulk collection of domestic
   phone call metadata. At the time, this was a critically important move
   that was highly targeted at a narrow and specific abuse. But the
   breadth and depth of organizational deception and subversion force us
   to recognize that we need reconstruction that goes much deeper than any
   specific legislative fix.

   We need a fundamental organizational reform. The so-called "outside
   independent experts" committee which the president has appointed, with
   insiders' insiders like Michael Morell and Richard Clarke, will not
   come close to doing the trick. Nor is it likely to allay anyone's fears
   who is not already an Intelligence Church adherent.

   Given the persistent lying and strategic errors of judgment that this
   week's revelations disclosed, the NSA needs to be put into
   receivership. Insiders, beginning at the very top, need to be removed
   and excluded from the restructuring process. Their expertise led to
   this mess, and would be a hindrance, not a help, in cleaning it up. We
   need a forceful, truly independent outsider, with strong, direct
   congressional support, who would recruit former insider-dissenters like
   Thomas Drake or William Binney to reveal where the bodies are buried.

   Anything short of root-and-branch reconstruction will be serving weak
   tea to a patient with a debilitating auto-immune disease.

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