That NSA Thing

No doubt there has been enough written about this, and one more thing will be superfluous.  A blog named Big Data and the Law can’t avoid the subject though.  But before we get into the “and the Law” part of our mission, I think it useful to take a look at what others have written on this subject and see what we can learn.

It seems that much of what’s been written falls into the OMG category.  Mercifully, there are a number of different takes on this story that are actually thoughtful.  Here is a list of some of them that I find particularly interesting:

Consider this article by Andrew Couts in Digital Trends: OH MY GOD! THE GOVERNMENT IS DOING … EXACTLY WHAT WE THOUGHT IT WAS DOING ALL ALONG.  The essence of the article is the assumption that the story will fade and people will forget about it.  I think that’s probably right.

Adam L. Penenberg takes that notion a step further in this article in pandodaily: The banality of surveillance.  He gives some perspective about the scale of surveillance that we have been ignoring for a long time now.

On that note, there are some good sources for information about just what technologies are available to governments and what they can and have been doing with them.

One good example is: What’s the Matter with Metadata?  It was posted by Jane Mayer in The New Yorker and, unsurprisingly, gives some insight into what metadata is and why it’s important in this case – in fact likely more important than the content of communications in some cases.

This piece by Kurt Opsahl on the Electronic Frontier Foundation site provides additional information about that topic.  You might find it a little frightening.  In any event, it certainly makes it clear why the reassurances that no one is listening to our phone calls is not really reassuring.

The Electronic Frontier Foundation site is a good source of information about these issues generally.  This piece by Hanni Fakhoury and Trevor Timm provides a very particular example of a technology that most of us haven’t heard of: Stingrays: The Biggest Technological Threat to Cell Phone Privacy You Don’t Know About.  A Stingray is an International Mobile Subscriber Identity locator.  The article explains that:

A Stingray works by masquerading as a cell phone tower—to which your mobile phone sends signals to every 7 to 15 seconds whether you are on a call or not— and tricks your phone into connecting to it. As a result, the government can figure out who, when and to where you are calling, the precise location of every device within the range, and with some devices, even capture the content of your conversations. (Read the Wall Street Journal’s detailed explanation for more.)

There is also a timeline about the history of the NSA domestic spying activity and related legal action here on the Electronic Frontier Foundation site.

At Forbes, John Goglia asks this interesting question that is completely unrelated to spying or privacy:

Why is a 29-year-old high school drop-out making more as a low-level contractor than any senior manager in the federal government short of the President himself, and a very few other special category employees?

On the more humorous side, we have this article by Dylan Matthews in The Washington Post: The real NSA scandal? The horrible slides.

So that’s my starting point for launching into the legal issues.  Basically – what exactly is it that is happening?  That seems like a reasonable place to start.

On legal front then, discussions about the legality of NSA (and other) domestic surveillance have been going on for quite a while.  See the above Electronic Frontier Foundation timeline for a summary.  That’s interesting and important, but I don’t see much changing here just because of this episode.  On the other hand, complications in the United States – European Union relationship regarding privacy issues might be more interesting.  More on that later.

An issue that the media seem less concerned about is the degree to which private industry has capabilities similar to those government capabilities at issue here.  More on that later as well.

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