Letter to Declan McCullagh regarding June 15 “Scoop”

Declan McCullagh
Chief political correspondent, senior writer
CNET
 
 

Dear Mr. Declan McCullagh:

I appreciate your interest in help uncovering this tawdry business about the NSA. And I notice that your revelations on Saturday, June 15, 2013 has had to be scaled back, fraying your credibility a tad. So I wish to give you just a nickel’s worth of amateurish advice (my country has got rid of the penny, so the appropriate expression can no longer be used).

Although I was still too young, I do remember some lessons from the Watergate era. And these defense / intelligence chiefs give all the evidence of being true politicians/diplomats, using careful language to convey what they desire to disclose or veil, which might not be picked up except by an attuned and practiced listener. Therefore, one has to carefully ask scrupulously precise questions; especially of one who has admitted to giving least untruthful answers while having one eye on potential contempt of congress charges in future.

It struck me that when U.S. President Barack Obama said, “Nobody is listening to your phone calls”, his language technically allow for the possibility for machinery to do content searches on one’s phone call, while one could claim to not technically (from a legal sense) open up the voice call (or email) package. (From a programming sense, one has to open the file/field. But a political/bureaucratic chief can claim not to know the distinction (“plausible deniability”)) Thus, the question I never hear asked by journalists is this: “Perhaps, nobody is listening to our phone calls, but is any there entity, whether human, trained monkey or machinery, accessing the innards of these phone/email messages in any particular way without a specific and particularized warrant?”

I have done key word content searches on my files and emails for the last decade on relatively weak PC and I am amazed at how relatively fast a response there is, especially from the 1990s days. Perhaps, the technical capabilities are not here yet to do a complete daily content search; although we are a lot closer than I believed prior to Snowden’s revelations.

I observe the same nuanced sophistry in the push-back denial by “least untruthful answer” Clapper in the June 16, 2013 “ODNI Statement on the Limits of Surveillance Activities”. Why use the phrase “a single analyst”. This intimates to me that a bevy of analysts could ‘legally’ approve such eavesdrops as a way to avoid rogue abuses (i.e. IRS-like means to discredit political opposition or whistleblower access by the likes of Snowden). Whatever way Rep. Jerrold Nadler (D-NY) might have understood the NSA “correction”, it isn’t a true repudiation that content access is possible by analysts without a particularized legal warrant. Perhaps, multiple analysts, whether in a hierarchical or collegial approval process, must sign off on any access.

Even the phrase “without proper legal authorization” opens up the possibility of an initial blanket authorization by a secret court interpretation giving access based on general access principles.

I wish you well as I share similar concerns. However, you have to be as sharp as a Jesuitical lawyer.

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