There are many pertinent issues surrounding mass surveillance that are seldom being discussed by public officials and their watchdogs. While the President is working on a legislation proposal for Congress to curb the collection of metadata, what few fail to realize is that the NSA is collecting more than simply metadata. Intelligence agencies are collecting content, videlicet images, video, voice, authentication credentials, digital messages, et cetera. Perhaps scarier, the NSA’s blatant exploitation of specific protocols and applications, thereby allowing control over an individual who utilizes such vulnerable methods. Even if we were to assume that the NSA’s collection of content is miniscule in comparison to metadata, it exists nonetheless. Such a devastating power poses the threat of significant harm, if not now, inevitably down the road.

With respect to the NSA — and I’ll be just brief on this — I said several months ago that I was assigning our various agencies in the IC — the intelligence community — to bring me new options with respect to the telephone database program. They have presented me now with an option that I think is workable. And it addresses the two core concerns that people have — number one, the idea of government storing bulk data generally. This ensures that the government is not in position of that bulk data.

I want to emphasize once again that some of the dangers that people hypothesized when it came to bulk data there were clear safeguards against. But I recognize that people were concerned about what might happen in the future with that bulk data. This proposal that’s been presented to me would eliminate that concern. The second thing that people were concerned about is making sure that not only is a judge overseeing the overall program, but also that a judge is looking at each individual inquiry that’s made into a database. And this new plan that’s been presented to me does that. So overall, I’m confident that it allows us to do what is necessary in order to deal with the dangers of a terrorist attack, but does so in a way that addresses some of the concerns that people have raised. And I’m looking forward to working with Congress to make sure that we go ahead and pass the enabling legislation quickly so that we can get on with the business of effective law enforcement. [1] [sic]

Depending on the President’s proposal, there is expected, assuming Congress enacts legislation, to be limitations placed upon bulk collection “with respect to the telephone database program.” It is yet to be determined how “bulk data” is operationalized by the President, but many in Congress are already associating it with metadata. “The president today indicated his support for a plan to reform the phone records metadata program,” Sen. Dianne Feinstein said in a statement. Reuters, too, is reporting the proposals by the White House as a “metadata reform plan” [2].

Even if we were to assume that bulk collection, “with respect to the telephone database program,” were to be curbed, what can be assumed with respect to Internet Service Providers? What can be assumed with respect to companies like LavaBit and the integrity of their records, most of which consist of innocent individuals? What can be assumed with respect to Optic Nerve, whereby millions of Yahoo webcam images were intercepted by intelligence agencies working in cooperation [3]? What of the deliberate “false flag operations”, as described in the SECRET document entitled DISRUPTION Operational Playbook, designed to destroy reputations?

Indeed, while the bulk collection of metadata is certainly one issue to address, it isn’t the only one. Whether it be backdoors placed into software, scilicet DROPOUTJEEP, or automated hacking, see TURBINE, there are many actions of the intelligence community that must be immediately suppressed. Still, while one can be hopeful that the citizenry and their government will work together to correct the abuses, there can be little hope with continued secrecy and non-transparency. Reform will do no good if judges are allowed to give rulings in secret courts. Change will bring forth no positive result if government continues to circumvent Freedom of Information. There can be no hope in abandoning the collection of metadata, while the facilitation of exploitation and disinformation campaigns remain to blossom.

The only change that will come about is through absolute reform, not segmented shenanigans. Absolute reform, then, begins by addressing:

The Constitutionality of intelligence agencies to begin with; see Article I Section 8 of the United States Constitution.

The Constitutionality of general warrants; see writ of assistance

The Constitutionality of engaging in cyberwarfare without a Declaration of War; see Article I Section 8 of the United States Constitution

The most latter and former propositions might be foreign to some, so let us begin by examining the penultimate. The Constitutionality of general warrants is an issue that many individuals hold opinion about. For many proponents, dragnet surveillance is in the interest of national security. Edward Snowden is a traitor. For many opponents, the 4th Amendment of the United States Constitution requires specific warrants, viz. individualized, before one’s person, house, paper, or effects can be searched or seized. It would follow, then, that Snowden upheld the integrity of the Constitution over his obligation to protect State secrets. He is therefore a hero. Subscribing to the first, we need not address the Constitutionality of intelligence agencies or their engagement of cyberwarfare, for we have already enumerated general warrants to begin with. If one were to subscribe to the second, it automatically begs the examination of the Constitutionality of the intelligence community’s establishment, much less actions.

Congress is enumerated with very specific powers. If Congress exercises a power in which they do not have, what can be said of that action? Instead of restricting Congress to the limited set of powers that they were originally enumerated with, many have turned a blind eye as legislators purposefully and loosely interpret the “general welfare” and “common Defence” clauses, thereby increasing the federal government’s power to a level that was never intended. While opponents may retort that the dynamic interpretations and judicial activism are results of democracy, I am prompt to point out that the United States is a republic [4]. As history reminds us, alcohol prohibition was unpopular among the majority. This is reflected through the speakeasies and illegal distribution of alcohol through organized crime. Though alcohol was certainly unpopular to the majority of individuals, it was nevertheless prohibited by the highest law of the land through its 18th Amendment. The solution? The repeal of prohibition by amending the Constitution! And so it occurred, through representatives, a super-majority of States repealed prohibition through the 21st Amendment.

As evidenced in history, though a majority may wish to democratically pass federal legislature, it is impossible to do so against the will of a super-majority that was earlier set forth in the Constitution. This is indeed why 51% of the citizenry cannot ask Congress to prohibit certain forms of speech. It therefore follows that if there is to be change in the function of the federal government, a super-majority of the States must agree to enumerate such a power. Can it be said that the States have properly allowed the federal government such, namely by means of altering the Constitution? Such cannot be true in relation to the federal government establishing intelligence agencies, tasked with collecting data and undermining computer security. If we were to strictly interpret the Constitution, setting aside radical judicially active rulings, where is Congress enumerated the power to pass such laws? Unless the Constitution is to be amended to allow such a power to exist, anything else is a slippery slope that will lead to abuses. Such evidence isn’t too far off from where we are at now.

If we were to assume that it is Constitutional for Congress to establish intelligence agencies and dictate their operations through legislature, what can be stated about said agencies engaging in acts of war? Indeed, while shooting packets is different than shooting bullets, offensive hacking is a form of aggression that can have lasting ramifications. Take for history Stuxnet, a computer virus that targeted an Iranian nuclear centrifuge. Look at Distributed Denial of Service attacks, which possess the ability to bring down a service. Even more extreme examples are the possibilities of hacking into power grids, financial databases, or drones. At the end of the day, although cyberwar is much different than physical warfare, a common denominator exists: aggression. It is such acts of aggression that can lead countries into actual war, where bullets are preferred over packets! It is therefore preposterous for the Executive branch to be engaging in acts of war without having a proper Declaration issued by the Legislative branch.

Where do the governed draw the line? At the Constitutionality of the establishment of these agencies? At the Constitutionality of their actions? At the Constitutionality at the scope of the warrants? Or even further down the slope? Real change will be unlikely until radical reform becomes a priority of the citizenry, namely abolishing intelligence agencies altogether and starting anew with a Constitutional amendment.

References

1. Press Conference with President Obama and Prime Minister Rutte of the Netherlands — http://www.whitehouse.gov/the-press-office/2014/03/25/press-conference-president-obama-and-prime-minister-rutte-netherlands

2. NSA ‘metadata’ reform plans seek to defuse potential opposition — http://www.reuters.com/article/2014/03/25/us-usa-nsa-idUSBREA2O21220140325

3. GCHQ Optic Nerve — https://www.eff.org/document/20140227-guard-gchq-optic-nerve

4. Democracy: A Short Conversation with an Interventionist and a Socialist — https://themarketliberal.wordpress.com/2014/03/26/a-short-conversation-with-an-interventionist-and-a-socialist/