Permanent Record(55)
STELLARWIND was the classified report’s deepest secret. It was, in fact, the NSA’s deepest secret, and the one that the report’s sensitive status had been designed to protect. The program’s very existence was an indication that the agency’s mission had been transformed, from using technology to defend America to using technology to control it by redefining citizens’ private Internet communications as potential signals intelligence.
Such fraudulent redefinitions ran throughout the report, but perhaps the most fundamental and transparently desperate involved the government’s vocabulary. STELLARWIND had been collecting communications since the PSP’s inception in 2001, but in 2004—when Justice Department officials balked at the continuation of the initiative—the Bush administration attempted to legitimize it ex post facto by changing the meanings of basic English words, such as “acquire” and “obtain.” According to the report, it was the government’s position that the NSA could collect whatever communications records it wanted to, without having to get a warrant, because it could only be said to have acquired or obtained them, in the legal sense, if and when the agency “searched for and retrieved” them from its database.
This lexical sophistry was particularly galling to me, as I was well aware that the agency’s goal was to be able to retain as much data as it could for as long as it could—for perpetuity. If communications records would only be considered definitively “obtained” once they were used, they could remain “unobtained” but collected in storage forever, raw data awaiting its future manipulation. By redefining the terms “acquire” and “obtain”—from describing the act of data being entered into a database, to describing the act of a person (or, more likely, an algorithm) querying that database and getting a “hit” or “return” at any conceivable point in the future—the US government was developing the capacity of an eternal law-enforcement agency. At any time, the government could dig through the past communications of anyone it wanted to victimize in search of a crime (and everybody’s communications contain evidence of something). At any point, for all perpetuity, any new administration—any future rogue head of the NSA—could just show up to work and, as easily as flicking a switch, instantly track everybody with a phone or a computer, know who they were, where they were, what they were doing with whom, and what they had ever done in the past.
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THE TERM “MASS surveillance” is more clear to me, and I think to most people, than the government’s preferred “bulk collection,” which to my mind threatens to give a falsely fuzzy impression of the agency’s work. “Bulk collection” makes it sound like a particularly busy post office or sanitation department, as opposed to a historic effort to achieve total access to—and clandestinely take possession of—the records of all digital communications in existence.
But even once a common ground of terminology is established, misperceptions can still abound. Most people, even today, tend to think of mass surveillance in terms of content—the actual words they use when they make a phone call or write an email. When they find out that the government actually cares comparatively little about that content, they tend to care comparatively little about government surveillance. This relief is understandable, to a degree, due to what each of us must regard as the uniquely revealing and intimate nature of our communications: the sound of our voice, almost as personal as a thumbprint; the inimitable facial expression we put on in a selfie sent by text. The unfortunate truth, however, is that the content of our communications is rarely as revealing as its other elements—the unwritten, unspoken information that can expose the broader context and patterns of behavior.
The NSA calls this “metadata.” The term’s prefix, “meta,” which traditionally is translated as “above” or “beyond,” is here used in the sense of “about”: metadata is data about data. It is, more accurately, data that is made by data—a cluster of tags and markers that allow data to be useful. The most direct way of thinking about metadata, however, is as “activity data,” all the records of all the things you do on your devices and all the things your devices do on their own. Take a phone call, for example: its metadata might include the date and time of the call, the call’s duration, the number from which the call was made, the number being called, and their locations. An email’s metadata might include information about what type of computer it was generated on, where, and when, who the computer belonged to, who sent the email, who received it, where and when it was sent and received, and who if anyone besides the sender and recipient accessed it, and where and when. Metadata can tell your surveillant the address you slept at last night and what time you got up this morning. It reveals every place you visited during your day and how long you spent there. It shows who you were in touch with and who was in touch with you.
It’s this fact that obliterates any government claim that metadata is somehow not a direct window into the substance of a communication. With the dizzying volume of digital communications in the world, there is simply no way that every phone call could be listened to or email could be read. Even if it were feasible, however, it still wouldn’t be useful, and anyway, metadata makes this unnecessary by winnowing the field. This is why it’s best to regard metadata not as some benign abstraction, but as the very essence of content: it is precisely the first line of information that the party surveilling you requires.