Image: Flickr/John Perivolaris
A National Security Agency whistleblower named Thomas Drake was indicted several years ago for providing information to the press on waste, fraud and bureaucratic dysfunction in the agency’s counterterrorism programs. The U.S. Department of Justice indicted Drake, an NSA senior executive, under the Espionage Act of 1917 for retaining allegedly classified information. Eventually, the felony charges against Drake were dropped, and he pled guilty to a misdemeanor, exceeding authorized use of a computer. Still, the DOJ’s strategy in that case may provide some clues as to what’s in store for Edward Snowden, a government contractor who exposed himself last weekend as the source for a widespread domestic communications story first reported by The Guardian. Drake spoke with Scientific American to shed some light on whistleblower prosecutions and the science behind surveillance. An edited transcript of the conversation follows:
Director of National Intelligence James Clapper has said it's not realistic nor would he want to listen to everyone's communications, so what can be done with all these phone records that the NSA is collecting?
The distinction here is metadata versus content. It’s like when you get physical snail mail, it has a certain shape, weight and type of envelope, and an address and a return address and a stamp and usually a date and routing numbers. And it’s going to a particular mailbox at a particular address—that’s all metadata. The content is what it’s inside the envelope. In a digital space the metadata is always associated with content. The content would be the actual phone call—the conversation. The fact is the metadata is far more valuable to them because it gives them an index of everything. If they want to, the data is available and the capability exists to store it, then later they can access the content as well with a warrant. You can learn a tremendous amount about people by looking at the metadata…phone records include location information. At that level you can track them as well and know who they speak with, the time of day and all of that. By definition a phone number is always associated with somebody or some business—believe me, subscribers all have names. Think of the White Pages; the White Pages equal metadata. If I store that, that gives the government a phenomenal power in secret to track all kinds of information about a person without going to content.
With all that data, it would take tremendous resources to scour that information even before we get to content. So how do you know what to look for?
Patterns. Signatures. Profiling. That’s where it gets pernicious in secret; that’s when they may decide to look at content as well. But metadata even without content already tells you a lot of information. Metadata gives meaning to content. What does NSA need with a 100 million phone records? We are losing the foundation of innocence until proven guilt. The assumption of innocence no longer exists in a surveillance state…we are all foreigners now. To me that’s crossing over into a form of governance that is a clear violation of the Fourth Amendment. We are eroding a foundational part of this country. The important distinction is the law that exists right now allows the government with some [limitations—] at least on paper—to collect all meta-data without any particularized suspicion on someone without getting a warrant for someone. To get content you would need a warrant. The technology is such that the distinction between metadata and content is largely losing its distinction simply because all digital content by definition has metadata associated with it. You can strip off the metadata to do the analysis...but then when you want to, because you already have the data, even if you didn’t have probable cause to do it,you can get into the content.