1. Monthly archive
  2. January 2014

January 2014

Correcting the record on the NSA review

[Commentary] As one of the five members of the President Barack Obama’s Review Group on Intelligence and Communications Technologies, let me try to clear up some of the confusion and misperceptions surrounding the 304 -page report.

One misperception is the extent of the changes called for in the report. Commentators have used the word “sweeping” to characterize the recommendations, arguing that they would “roll back” the capabilities of the intelligence community. This is incorrect. Several news outlets have reported that the review group had called for an end to the program, but we did not do that. We called for a change in approach rather than a wholesale rejection.

Another misperception involved the review group’s view of the efficacy of the Section 215 program; many commentators said it found no value in the program. The report accurately said that the program has not been “essential to preventing attacks” since its creation. But that is not the same thing as saying the program is not important to national security, which is why we did not recommend its elimination.

Finally, the argument that the review group is boxing in the president’s decision-making on this issue is flawed. In its transmittal letter to the president, the group noted that it did not have the time nor the expertise to think through all the implications of each recommendation, noting that the recommendations require further study before acceptance and implementation. That is not a box; it is a road map to an effective policy process.

[Michael Morell is the former acting director and deputy director of the Central Intelligence Agency and a member of President Obama’s Review Group on Intelligence and Communications Technologies]

[Dec 27]

Analysis: Is NSA Surveillance Constitutional?

[Commentary] In the span of just ten days, we have seen two diametrically opposed judicial rulings about the legitimacy of the government's controversial bulk metadata collection program, the existence of which we learned about thanks to Edward Snowden.

Although the two opinions apply the same law and essentially the same facts, they are so contradictory they cannot be reconciled. One judge will be proven right and the other proven wrong, although I suspect it may be 2015 before the final tally is recorded. US District Judge Richard Leon in Washington boldly declared the National Security Agency's bulk metadata collection program to be "likely unconstitutional," as applied to individual citizens whose phone records were collected and stored.

On Friday, Dec 20, 2013, US District Judge William Pauley in New York boldly declared that very same surveillance program is constitutional as applied to the American Civil Liberties Union (ACLU), the phone records of which also were collected and stored. I suspect the two rulings will soon be used side by side in law schools to illustrate how two reasonable jurists could come to completely different conclusions about the same facts and the same laws. And that, of course, says a great deal about the nature of the NSA's program itself and its symbolic role in the conflict America faces as it teeters back and forth between privacy and security. Taken together, these two manifestos represent the best arguments either side so far has been able to muster. If you trust the government, Judge Pauley's the guy for you. If you don't, Judge Leon makes more sense.

That two judges would hold such contrasting worldviews is either alarming (if you believe the law can be evenly applied) or comforting (if you believe that each individual judge ought to be free to express his conscience). Where does that leave the rest of us? The program still rolls on --unencumbered by the statutory and constitutional confusion that now reigns over it. We'll spend the bulk of 2014 watching the fight over it play out in at least two separate federal appeals courts. And then, unless there is a form of unanimity between and among those appeals courts that clearly is lacking between and among Judges Leon and Pauley, we'll see sometime in 2015 the first big terror law case in front of the Supreme Court since 2008.

[Dec 27]

The most Kafkaesque paragraph from today’s NSA ruling

[Commentary] US District Court Judge William Pauley dismissed an American Civil Liberties Union (ACLU) lawsuit alleging that the National Security Agency's phone records program was unconstitutional, based primarily on his interpretation of the 1979 Smith v. Maryland Supreme Court ruling. But elsewhere in his ruling, the judge made what seems to be a slightly Kafkaesque argument to disregard the ACLU's statutory claim that the NSA was exceeding the bounds of section 215 of the Patriot Act. Judge Pauley is essentially saying that the targets of the order have no recourse to challenge the collection of their personal data because Congress never intended for targets to ever know that they were subject to this sort of spying. And that the fact that everyone knows about it now, thanks to Edward Snowden, doesn't change the targets' ability to challenge the legality of the order. That suggests a troubling possibility: that even if there were clear-cut evidence that the government was sending out illegal 215 orders, the people harmed by the government's illegal conduct might not have any way to stop it. Instead, the only recourse may be for the recipient of an order (such as Verizon) to challenge it in the notoriously secretive Foreign Intelligence Surveillance Court. But Verizon isn't the one whose privacy is harmed by the order, so why would it expend legal resources to fight it?

[Dec 27]

NSA Phone Surveillance Is Lawful, Federal Judge Rules

A federal judge in New York ruled that the National Security Agency’s program that is systematically keeping phone records of all Americans is lawful, creating a conflict among lower courts and increasing the likelihood that the issue will be resolved by the Supreme Court.

In the ruling, Judge William Pauley III, of the United States District Court for the Southern District of New York, granted a motion filed by the federal government to dismiss a challenge to the program brought by the American Civil Liberties Union, which had tried to halt the program. Judge Pauley said that protections under the Fourth Amendment do not apply to records held by third parties, like phone companies. “This blunt tool only works because it collects everything,” Judge Pauley said in the ruling. “While robust discussions are underway across the nation, in Congress and at the White House, the question for this court is whether the government’s bulk telephony metadata program is lawful. This court finds it is,” he added. A spokesman for the Justice Department said, “We are pleased the court found the NSA's bulk telephony metadata collection program to be lawful.” He declined to comment further. According to The Guardian, in his ruling, the judge said the phone data-collection system could have helped investigators connect the dots before the attacks. He dismissed the lawsuit brought by the American Civil Liberties Union.

[Dec 27]

A Phone System With Safeguards

[Commentary] Is it time to phase out the telephone system that has been with us since the days of Alexander Graham Bell? The Federal Communications Commission is grappling with this question as more Americans switch from wired phones to cellphones and Internet-based services like Skype.

The FCC is expected to authorize AT&T and other phone companies to replace conventional telephone wires with wireless or fiber-optic connections in certain neighborhoods or a large rural area to see how such a change would work in practice. As the FCC deals with new technology, it needs to keep in place safeguards that have long ensured that the phone system serves everyone. Today, Americans who cannot afford regular phone service can get a subsidized wired or wireless connection. That should continue even if the underlying technology changes. While some Internet-based phone services like Skype do not currently allow calls to 911, regulators should make sure new technology used by phone companies will allow consumers to dial emergency services. And as telecommunications companies upgrade their networks, they should continue to connect to each other’s systems and to devices like home alarm systems and heart rate monitors seamlessly. America has a long history of telecommunications innovation since Bell made the first call to Watson nearly 140 years ago. The issue is not whether the phone system needs to be upgraded. It’s how.

[Dec 23]

Can the FCC Handle Phone Service over the Internet?

[Commentary] Slowly and carefully, the Federal Communications Commission is circling around a problem that may be its hardest ever. The digital TV transition? Piece of cake. First-on-the-planet incentive auctions? No sweat. But this one is tough: nothing less than a remake of the US telephone system, all 120 million phones and 1.5 billion miles of wire.

The engineers and entrepreneurs have gotten out ahead of the FCC lawyers. Now the lawyers are scrambling to catch up. Voice over Internet Protocol (VoIP) presents the FCC with a doctrinal conflict. On the one hand, VoIP is an Internet application, and the FCC has long forborne from regulating Internet applications. This principle says: leave VoIP alone. On the other hand, the FCC tries to be technology-neutral -- that is, to regulate similar services similarly, regardless of how they are delivered. The economics dictate that more and more telephone users and functions will migrate to the Internet. Some public interest advocates view this trend with alarm. In particular, they fear losing hard-won consumer protections that benefit PSTN users. VoIP providers are likely to argue, as the broadband providers did, that traditional telephone-line protections are infeasible or unneeded in an Internet age. The question is, to provide expensive, hard-to-reach rural areas equal access to coverage, will the FCC regulate the coverage of IP telephony like wireline phones or like mobile phones -- or possibly some other way? The answer may be a fund that all providers, whether wireline or VoIP, would pay into, and that would subsidize rural and reservation service -- somewhat like the present high-cost component of the universal service fund, but with much of the revenue coming from outside the conventional telephone industry. Multiply this issue by every other facet of telephone regulation. The overall task will be something like updating the rules of the road from horse-and-carriage traffic to modern automobiles.

[Dec 22]

A Lifeline for the Poor, Free Phone Service Faces Legal Battle

15.3 million people in the United States receive Lifeline telephone service because they meet income guidelines or are enrolled in programs like Medicaid or food stamps. But the fundamental feature of the program on which many recipients rely -- 250 minutes of free wireless service a month -- is at the center of a legal battle linked to a new tactic to reduce fraud in the program. The outcome could have far-reaching consequences for the telecommunications industry and for millions of impoverished Americans.

Alarmed by accounts of households that have more than one subsidized phone -- a breach of federal guidelines -- and other allegations of fraud, the Georgia Public Service Commission voted this year to make this state the first to require phone companies to collect a fee of at least $5 a month from Lifeline users. As an alternative, in an effort to force the service providers to better police phone usage, the commission also said that the companies could, for the same compensation they already receive from the government, offer participants 500 minutes a month. But the companies denounced that option. Georgia’s mandate, which had been scheduled to take effect in January before a judge in Atlanta granted an injunction, prompted outrage from some advocates for the poor, and a legal challenge from a trade group that represents cellphone companies. The group argued that Georgia was circumventing federal law to set rates. But the author of the regulation has argued that the fee’s benefits outweigh the risks, and that it would do much to reduce Georgia’s share of fraud in the Lifeline program.

[Dec 27]

SoftBank eyes purchase of T-Mobile

SoftBank is moving to acquire fourth-ranked American wireless carrier T-Mobile US, a deal that would allow it to match up evenly with the two big American players if approved by US regulators.

The Japanese telecommunications giant intends to buy a majority of the shares in T-Mobile through US subsidiary Sprint as early as next spring in a transaction estimated at more than 2 trillion yen ($19 billion). It is in the final stages of talks with T-Mobile's German parent, Deutsche Telekom, said sources close to the matter. Purchasing T-Mobile would boost the SoftBank group's revenue from mobile operations to 7 trillion yen a year, making it the world's No. 2 carrier, behind China Mobile. T-Mobile generates about 2.6 trillion yen in annual revenue. If the deal goes through, the company will likely be integrated with Sprint, giving birth to a carrier with some 100 million subscribers, with SoftBank controlling the new entity by holding a 60-70% stake. The deal needs approval by the US Federal Communications Commission and Department of Justice. The FCC was believed to have opposed an industry shakeup that would reduce the number of big players from four to three. But SoftBank apparently grew emboldened by the Justice Department giving the green light to a merger of major US airlines after having initially objected.

[Dec 26]

Post-Obamacare, more fed tech hurdles ahead

A defective website is the least of the government’s tech problems. The HealthCare.gov mishap illuminated a cracked federal procurement system that lacks adequate management and routinely misuses millions of taxpayer dollars. And it might stay that way, despite a mounting list of tech projects much larger and more nuanced than a broken insurance portal.

The government already faces a stalled attempt to further digitize veterans’ medical records. It must prove the Federal Aviation Administration can overhaul the country’s air traffic control system without planes falling from the sky and that a critical nationwide safety network will actually work. The Federal Communications Commission needs to create the infrastructure to auction off precious airwaves, and the Department of Homeland Security has to figure out how it will process millions of workers should an immigration bill pass. President Barack Obama blasts systemic failures but gives little indication how he‘ll fix them. Federal IT bills languish in Congress. And industry pleas meet silence. “You should be concerned; you should have been concerned for years,” said Jim Johnson, founder of the Standish Group, which studies IT failures. “This is something that has been broken for a long, long time. … It’s probably just getting worse.” The research firm calculates 94 percent of large federal IT projects in the past decade ranked as unsuccessful. More than half got delayed, went over budget or didn’t live up to expectations.

[Dec 23]

Pentagon’s cyber arm poised to expand role

The US military’s Cyber Command is about to receive the digital equivalent of faster ships and stronger missiles -- but the force, only a few years in the making, is still grappling with how far it can go in fighting adversaries in cyberspace. As part of the defense policy bill that just passed Congress, the Pentagon’s many cybersecurity initiatives together secured billions of dollars in funding as well as new resources to help train Cyber Command’s programmers and prepare them to operate on the emerging digital battlefield. But the infusion comes as CyberCom, as it’s known, is still working out its fundamental rules of engagement, including thorny questions as to when it can strike back at hackers and whether it can act without getting approval from the president. It’s also struggling to find and train the talent it needs to carry out its mission, partly because of Pentagon budget pressures. And CyberCom has become ensnared in the debate over National Security Agency surveillance sparked by Edward Snowden’s leaks. The cyber force shares a director and headquarters with the controversial spy agency -- and some in Congress want to look at splitting the two operations. It all points to growing pains -- and more scrutiny -- as CyberCom takes on a larger role in protecting the US from attacks.

[Dec 23]

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