The NSA Have Wiretapped In Bulk Since 1976. They’re Not Going To Care What Happens To The Patriot Act Of 2001.

Right now, there is a debate about a small section of the Patriot Act in the U.S., and which option best removes the authorization from the U.S. NSA to wiretap the world. Both answers in the debate are wrong. No change in law will stop the NSA’s behavior: they have been wiretapping like this since at least 1976, and will not care about changes to a law from 2001. It just happens to be the most convenient justification of the day. If that justification is removed, there will be countless others.

The entire debate is a red herring. Getting rid of or renewing Section 215 of the Patriot Act, rewriting it with a more limited scope, or indeed getting rid of the Patriot Act in its entirety, will do absolutely nothing to change the NSA’s behavior.

The NSA is just choosing to justify its bulk wiretapping of conversations and collection of metadata with the Patriot Act at the moment. If that particular avenue is closed off, there will be another justification. And another. And another. And at the end of the day, they will both know and don’t care they’re breaking all of them.

Let me tell you about an event in 2008, when I happened to be on the same expert panel as the local supervisor of NSA activities. (That wasn’t his formal title, of course. He was over-director of the Swedish FRA, which is the Swedish equivalent of the U.S. NSA, but the former has acted quite a bit like a local accomplice to the latter.) In any case, it’s hard to get much more senior in the intelligence community.

When lunch arrived at the seminar of the event, this person joined me at my table. We were the only technical geeks there, so it made sense in a weird sort of way. A proposed Swedish equivalent of the Patriot Act, but on steroids, was being discussed all over at the time. (Among other things, it expressly allowed the Swedish NSA to analyze and keep a database over people’s sexual orientation, to give you an idea of how far it went – no, goes.)

I told him that a lot of people at the time believed the FRA were already wiretapping all wires in bulk.

“Oh no!”, he said. “We don’t. We’re listening to [everything sent over] satellites. We’ve done so since 1976. That violates both the Swedish constitution and the European Convention on Human Rights”, he snickered.

I got the impression he was actually bragging, perhaps trying to recruit me, perhaps trying to find a technical peer. But at the time, he didn’t know I was recording the conversation.

I sent that recording to the press afterward. So what happened? Was there an outrage? A storm? Did it cause political pressure to have the violations stop?

No. The press didn’t mention it at all, with one exception – an article in Computer Sweden, a technical magazine aimed at IT professionals. There was not one single mention of this in traditional oldmedia. Not one.

There were quite a few blogs writing about it (in Swedish), though.

The official justification for wiretapping all phonecalls that were transmitted over satellite link was an obscure radio law, which stated that nobody may be restricted from picking up radio waves from the air. However, that law was intended to cover broadcast radio, and certainly not building a huge duplicate satellite dish next to the intended recipient satellite dish, and listening to a copy of everything sent, even if that transmission happens to be radio waves. Lawyers just gave a blank nope to that official excuse, talking about expectations of privacy, just like the FRA overdirector had said he knew to be the case in a recorded conversation.

You will note from this episode that while there is an outward official legal justification, the top brass know full well that what they’re doing is completely illegal on every level. More importantly, you will also note that they don’t care a bit that it’s illegal, for the simple reason they don’t have to care.

It comes down to this: When the problem is that the NSA and their accomplice agencies don’t care a bit what the law says, the solution cannot be to change what the law says.

At the end of the day, there are exactly two ways to shut down the NSA’s bulk wiretapping of correspondence:

You can cut their funding.

Or you can cut their electricity.

Any other tweak to their environment, including their legal environment, will have no effect.