Simon writes (emphasis added):

Being a technologist, as he puts it, Mr. Maciej's greater point, beyond the secrecy and lack of accountability in the FISA oversight, is that one can't apply the past to the future when one considers the formidable possibilities for human monitoring that this metadata and this level of modern computing offers. Let me stipulate to this, once and for all. I understand the capabilities of the NSA and I concede that this data can be abused and that, certainly, the risks are higher than for previous uses of such data, just as the benefits of utilizing the data are now more advanced because of digital technology's march. But again, all law enforcement capability can be abused: A 9mm on a patrolman's hip can take human life in an unjustifiable manner, a search warrant can be used to plant evidence, informants can be used to manufacture false probable cause, and interrogation rooms can be used to beat on people until they implicate themselves and others. Still, we continue to allow police to arm themselves, use informants for cause, write search warrants and talk to reluctant people in small, windowless and unsupervised rooms.



In other words, abuses of this technology pose higher risks than other technology, "but again," technology posing lower risks can also be abused. The argument doesn't lead where Simon thinks.

Says Simon:

At no point in the legal history of the United States have we ever issued a blanket prohibition against the use of a proven, scientifically-sound technology or law enforcement asset because of its imagined possibilities for misuse. There's no precedent for such. The entire construct of our legal system is predicated on allowing that which is done legally, and trying to prohibit or even punish that which is done with the same methodologies illegally.



The technology exists to put a video camera in every home and office in America; or to embed a tracking device in every person. By Simon's logic, we should all be fine with doing so, just as long as the FBI requires a warrant before it can switch on the home cameras or the tracking devices***. Why stop there? How about a lethal capsule in every American that, legally speaking, can only be activated to stop someone who has been designated a terrorist? Surely Simon can conceive of some possible technology that would be more prudently banned outright than exploited. Indeed, he goes on to express deep misgivings about DNA collection of people arrested but never convicted. (He deems that threat greater than NSA spying; ergo, anyone who doesn't is contemptible.)



Simon does, at least, grant that present oversight of the NSA is insufficient:

The FISA process and its court are so completely shrouded in unaccountable secrecy that it is an unworkable apparatus for democracy. Independent review and oversight, with teeth, are the necessity here. And that oversight needs to have a healthy number of knowledgeable civilians -- duly vetted for national security -- who are professionals in the business of maintaining constitutional guarantees and civil liberties, and whose sole purpose in the process is to address those ideals. There needs to a congressional review process that can access the investigative documentation and arguments contained in affidavits for all FISA programming and investigative ventures, just as all decisions of the court need to be available to the vetted members of the intelligence committees. There needs to be periodic reporting -- a general report-card of sorts -- on the degree of civil liberties intrusions undertaken by the FISA process that is available for public review, even if such a document would be necessarily general about methodologies employed. This is the where the barricade ought to be.



This is the fight to have.



So basically, Simon castigates the people expressing deep worry about NSA surveillance for being alarmists; then argues that the program won't, in fact, be safe, pending lots of checks that don't exist and oversight that is unlikely to be implemented in the foreseeable future. Simon's series is rife with that sort of contradiction. I'll perhaps address more of them in a future post.