The NSA's Porn-Surveillance Program: Not Safe for Democracy

Its targets extend beyond suspected terrorists—and some rhetoric that the First Amendment would protect is singled out.

by Conor Friedersdorf

Let's think through the troubling implications of the latest surveillance-state news. "The National Security Agency has been gathering records of online sexual activity and evidence of visits to pornographic websites as part of a proposed plan to harm the reputations of those whom the agency believes are radicalizing others through incendiary speeches," Glenn Greenwald, Ryan Gallagher, and Ryan Grim report.NSA apologists would have us believe that only terrorists have cause to be worried. A surveillance-state spokesperson told the Huffington Post, "without discussing specific individuals, it should not be surprising that the US Government uses all of the lawful tools at our disposal to impede the efforts of valid terrorist targets who seek to harm the nation and radicalize others to violence."
As the story notes, however, the targets are not necessarily terrorists. The term the NSA uses for them is "radicalizes," and if you're thinking of fiery orators urging people to strap on dynamite vests, know that the NSA chart accompanying the story includes one target who is a "well known media celebrity," and whose offense is arguing that "the U.S. perpetrated the 9/11 attacks." It makes one wonder if the NSA believes it would be justified in targeting any 9/11 truther. The chart* shows another target whose "writings appear on numerous jihadi websites" (it doesn't specify whether the writings were produced for those websites or merely posted there), and whose offending argument is that "the U.S. brought the 9/11 attacks upon itself." That could be a crude description of what the Reverend Jeremiah Wright or Ron Paul thinks about 9/11.
The article quotes another defender of the program as follows:

Stewart Baker, a one-time general counsel for the NSA and a top Homeland Security official in the Bush administration, said that the idea of using potentially embarrassing information to undermine targets is a sound one. "If people are engaged in trying to recruit folks to kill Americans and we can discredit them, we ought to," said Baker. "On the whole, it's fairer and maybe more humane" than bombing a target, he said, describing the tactic as "dropping the truth on them."
Any system can be abused, Baker allowed, but he said fears of the policy drifting to domestic political opponents don't justify rejecting it. "On that ground you could question almost any tactic we use in a war, and at some point you have to say we're counting on our officials to know the difference," he said.

That is a stunning quote. If the history of the FBI and NSA teach us anything, it is that officials cannot be counted on to know the difference between legitimate surveillance and abuses of power. Constant checks on the judgment of insiders is vital. As well, the characterization of targets as people "engaged in trying to recruit folks to kill Americans" isn't necessarily accurate. The chart appears to set forth targeting criteria that go well beyond people trying to recruit killers of Americans.
"The NSA is using its considerable resources to repeat J Edgar Hoover’s tactics," Marcy Wheeler writes. "But it also shows that it is deploying such efforts against men who may not be the bogeymen NSA’s apologists make them out to be." Here's what I see:
1) The NSA is conducting surveillance on the porn habits of individuals, which means that the NSA is developing expertise in discrediting people with their online behavior. It's that same expertise that led to serious surveillance abuses in the past.
2) The people targeted aren't necessarily terrorists. They aren't necessarily terrorist recruiters either, even though NSA defenders talk as if they're the only targets.
3) It's unclear exactly what makes one a target, which is troubling, especially since the chart in the story includes rhetoric that would be protected by the First Amendment. Do we trust the NSA to decide what makes someone a radicalized? It isn't clear what, if anything, would stop the NSA from targeting someone illegitimately.
4) One target is identified as a "U.S. person," so that clearly isn't off-limits.
5) Apart from the propriety of this program, there is a question of its effectiveness. The NSA is responsible for intercepting intelligence that tips us off to the next Pearl Harbor or 9/11. Is it really an effective use of time and resources to monitor the pornography habits of "radicalizes" in a bid to discredit them by proving them hypocrites? I wonder what the NSA would point to as successful cases, if they revealed such things, and whether the benefits outweighed the costs.
In my estimation, it is folly to empower a secretive, unaccountable national-security bureaucracy to discredit people with their private sexual habits, because that is exactly the sort of program that humans seem unable to run without perpetrating abuses. NSA defenders talk as if past abuses of very similar programs are irrelevant. "I think we can describe them as historical rather than current scandals," Baker said. What he didn't explain is why history won't repeat itself. Human nature hasn't changed. The tendency of secretive national security bureaucracies to expand the sorts of people it targets and violate civil liberties hasn't changed. Jameel Jaffer is right: "The NSA has used its power that way in the past and it would be naïve to think it couldn't use its power that way in the future." The sketchy information we have suggests that the NSA does not have narrowly defined criteria for what makes legitimate targets, and it is unclear how abuses would be flagged.
The need for reform is clear.
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*As an aside, I wonder why this chart was shared with the Drug Enforcement Administration.