Monday, June 23, 2014

Restoring the Public Trust and Reforming the National Security Agency

Over the past year, there has been significant discussion in the media, amongst private circles, and even in the silence of the Intelligence Community about the revelations of Edward Snowden. Conversations about them have ebbed and flowed from whether the NSA was properly implementing the law, whether the law was properly scoped, whether the law was Constitutional... and so on and so on. This discussion was all focused around the Section 215 of the PATRIOT Act and FISA 702 data collection, which regrettably constituted a trivial sized minority of intelligence work and other internal documents compromised by the breach. I mention all this not because it is the basis of my current thoughts, but a vital piece of background that must be acknowledged.

Additional background necessary to the discussion is the past abuses of the intersection of law enforcement and intelligence. On the behalf of FBI, the NSA monitored international telegraph messages that entered or exited the United States, a project that was codenamed SHAMROCK. SHAMROCK was the continuation of a wartime censorship program that, when it was questioned, GEN Lew Allen, the Director of NSA, terminated it voluntarily. Another program from the same time was Project MINARET, in which the communications of “persons of interest” were monitored. Initially these persons were risks to the safety of the President following the assassination of Kennedy, but then expanded into drug traffickers and eventually into domestic dissidents. Rather than be deeply buried, this background information is publicly available from NSA itself. I first learned of these two cases from the baseline oversight training that NSA makes its employees take every single year.

Nationally, we all benefit from the work of the NSA in many ways. Not greatest among their responsibilities, though most controversial, is support to law enforcement, including counter terrorism. This is the relationship that makes the efforts of those hard workers potentially dangerous to the American citizen. It is such a minor aspect of the impact of NSA that we must be careful about how we proceed, lest we discard the valuable intelligence baby with the privacy risk bathwater. Effective intelligence is vital for our legislators and other policy makers, but it doesn't have to come at the cost of citizen privacy.

To have situational awareness about global militaries, militias, governments, and negotiations, the United States requires a significant infrastructure to support such generation of signals intelligence (SIGINT). That SIGINT infrastructure provides vast opportunities for abuse if it were to be misused against the American populace. As such, it is of vital importance that misuse and abuse be pro-actively prevented and the American populace sufficiently reassured of their safety from it. Two of the current missions of the NSA must be ended: support to law enforcement and counter terrorism. If any SIGINT is actionable against United States citizens, in any manner, then the entire infrastructure poses a real, potential threat to the American populace.

To continue the critically important contributions of the National Security Agency through the 21st century requires the trust and support of the American populace. Because of the increasingly intertwined nature of foreign intelligence related and civilian communications, the use of non-warrant collected data in any court, hearing, arbitration, or the like fundamentally compromises the Constitutional authorization of signals intelligence. Only by explicitly guaranteeing the invalidity of non-warrant collected signals evidence in all American jurisdictions, at every level, for all regulatory and law enforcement purposes can signals intelligence successfully continue into the future.

Unlike the Cold War, American communications travel over the same links as foreign communications. This causes a dilemma for intelligence generation as it means that when foreign communications are recorded, domestic communications may be recorded incidentally. Without an explicit law forbidding any evidentiary use, then the incidental recording of American communications is a danger to citizen liberty. By disconnecting intelligence and all sorts of law or regulatory enforcement, the American people could authorize deeper data analysis for intelligence. Important diplomatic, military, and policy making discoveries could be made such as robust cyber-intrusion attribution and tracking. Such important protective measures will never, and should never, be allowed if the data can be scanned for or used as evidence of crime. The situational awareness provided to legislators and policy makers lead to better, more accurate laws and regulations, even if the data itself is “worthless.”

By: Matthew Molyett
Matthew is a former NSA Cryptologic Computer Scientist and current Congressional Candidate for the 3rd Maryland seat. While employed for the government, he experienced the extensive training on NSA authorities and oversight, as well as the responsibilities placed upon affiliates to comply. The bulk of his activities consisted of performing direct malware analysis through sophisticated reverse engineering techniques and built explicit adversary knowledge through supporting investigations/operations and by collaborating with analysts across the organization. Matthew documented malware findings in technical reporting to enhance a common understanding of an intruder's techniques, tactics, and procedures for the purpose of discovery, mitigation, and exploration. This specifically included developing signatures to detect and mitigate adversary threats to U.S. Information systems.

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