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HOW IS BIG SNOOP RATIONALIZED AND WILL CONTINUE DESPITE OBJECTIONS
April 29, 2014
When Edward Snowden hit the send button on a laptop in Hong Kong last June, just shy of his 30th birthday, he became the poster boy for an acutely American conundrum: the tension between the government's constitutional commitment to the privacy of individuals and its responsibility for the safety of the nation.
A precocious computer whiz, Snowden had worked on network security for the Central Intelligence Agency before becoming a systems administrator on contract to the National Security Agency. In both capacities, he had pledged not to divulge state secrets. He had also taken an oath to "defend the Constitution against all enemies, foreign and domestic." The Chinese government's decision to let him pause in Hong Kong while fleeing arrest, and the Kremlin's grant of asylum, complete with Russian President Vladimir Putin's endorsement of Snowden's "honor," guaranteed that he would be condemned as a traitor in the United States.
WORDS FROM THE AUTHOR
But vilification was by no means universal. Across the political spectrum, from the Tea Party to human rights organizations on the left, there is wariness of unwarranted government intrusion into citizens' private lives. In an interview in Hong Kong en route to Moscow, Snowden played to that deep strain in the U.S. body politic. He characterized himself as a patriot and whistleblower, bent on saving his country from becoming an Orwellian security state.
That conceit resonated with some back home. Five months later, on the eve of Thanksgiving, a civil libertarian group called the Partnership for Civil Justice Fund bought space for a giant ad on the sides of Washington, D.C. buses. Its message: "Thank You Edward Snowden." Just before Christmas, Snowden gaveThe Washington Post a 14-hour interview that boiled down to "You're welcome." A number of year-end summaries of 2013 proclaimed the dawn of "the Snowden Era." Snowden's current whereabouts are unknown.
The Russians and the Chinese — who, like the United States, are superpowers in the realm of cyberhacking, cyberwarfare, and every other form of eavesdropping — have barely masked their schadenfreude.
With the approach of the first anniversary of the most copious and sensational leakage of intelligence secrets in history, the consequences of his actions continue to reverberate. In addition to evidence that the NSA had been collecting and storing some of the phone records of most Americans as well as the emails and other private Internet correspondence of many citizens, Snowden revealed that the agency has the ability — and indeed the practice — of listening in on phone conversations of foreign officials, most notoriously (but no longer) Angela Merkel, the chancellor of Germany.
America's diplomacy has been hobbled, its image abroad tarnished, its alliances strained, its government's standing in the eyes of its own people damaged, its policies challenged in court and, in some cases, already undergoing major revision at the behest of the White House.
The NSA itself is in trouble with otherwise friendly foreign governments and also with the giants of the American high-tech sector on which it depends for hardware, software, systems-design, encryption and decryption techniques, and cooperation in providing information about their customers.
As for President Barack Obama, he was accused of deception in his early efforts to tamp down the uproar. His personal approval rating plummeted, in no small measure because of the NSA furor (which was followed shortly after by an even more politically damaging misadventure in cyberspace — the botched rollout of the Affordable Care Act website). In mid-January — seven months after the first mega-leaks — he laid out an array of decisions, guidelines, and proposals intended to tighten limits on some NSA practices, while protecting its capability to monitor communications that might help the government thwart the nation's enemies. At the end of March, he submitted to a receptive Congress some sweeping reforms. Some critics worried he was going too far; others complained he was not going far enough.
The great debate is far from over. But this much is certain: the U.S. government has, at the highest level, accepted the galling fact that it must take steps in the direction Snowden wants: new curbs on the agency he had worked for and betrayed.
The passions in this controversy are high, as are the stakes. The issues are complex and in many cases esoteric. As a lawyer who long ago left that profession for journalism, but with a continuing interest in the law, I have focused my own attempt to cover this story on four prominent, knowledgeable, and respected experts whose differing perspectives on the problem and its solution help frame the debate.
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Two of them are U.S. senators: Dianne Feinstein (D-Calif.), a liberal on reproductive freedom, gay rights, and gun control but, in her capacity as chair of the Senate Select Committee on Intelligence, the NSA's most powerful congressional defender; and Ron Wyden (D-Ore.), the agency's leading critic on Capitol Hill. The other two are outside government: Joel Brenner, a former NSA inspector general who is still broadly, but not uncritically, supportive of the agency; and Jameel Jaffer, the deputy legal director of the American Civil Liberties Union (ACLU) and a leader of the movement to bar the NSA from hoovering up phone records and curb its surveillance of Internet and other electronic communications.
All four not only believe deeply in the Constitution — they know it well. Despite their differences, they also understand that the right to privacy is itself a conundrum, and that it has become more so with the passage of time. Therefore all four would agree with the proposition that there need to be reforms that take account of a changing world. What those reforms should be is where they come to a parting of the ways.
THE FOUNDERS' INTENT
The Fourth Amendment, which obligates the U.S. government to ensure that citizens "be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," was ratified by Congress as part of the Bill of Rights 223 years ago. Until the invention of modern communications technologies, it was fairly easy for citizens to know whether the authorities were rummaging through their property. To search a home or office, officers of the law had to physically enter. The Fourth Amendment generally prevented that from happening without a warrant and gave owners the right to challenge whether entries and confiscations were "reasonable."
Beginning in the second half of the 19th century, however, technological advances made it easier for the government to "search and seize" the contents of private communications without citizens' knowledge, thus depriving them of the ability to object. Wiretapping is almost as old as the telegraph, going back at least to the Civil War. Phone tapping has been an instrument of law enforcement and counterespionage since the beginning of the 20th century. An early instance of it was useful in probing the intentions of real and potential foreign enemies. In the first months of 1917, the British intercepted, decoded, and passed to Washington the "Zimmermann telegram": a proposal from the Kaiser Wilhelm II's foreign minister to the Mexican government promising that if Mexico allied itself with Germany in the event that the United States entered World War I on the side of the Allies, Germany would reward it with the return of formerly Mexican territory in Texas, New Mexico, and Arizona. The revelation helped stoke support for Congress's declaration of war that April.
However, once the war had ended, President Herbert Hoover's secretary of state, Henry Stimson, famously shut down the "Black Chamber," a precursor of the NSA, which had begun intercepting and decoding foreign diplomats' cables in peacetime, too. "Gentlemen," Stimson harrumphed, "don't read each other's mail."
Others in the U.S. government were not so naïve. By the late thirties, Army and Navy intelligence officers, aided by civilian experts and technicians, were decoding diplomatic cables from Tokyo. By New Year's Day 1941, they were picking up hints that Japan was preparing to attack the United States. But there was a failure of what today would be called "connecting the dots." As a result, the nation's leaders — including Stimson, who was then Franklin Roosevelt's secretary of war — took no action to protect the Pacific Fleet.
Senator Feinstein, the daughter of an air raid warden in San Francisco, was 8 years old in December that year. Pearl Harbor, she feels, engendered her hawkish views on national security and intelligence. She remembers the blackout after the attack and a submarine net draped across the Golden Gate to prevent the Japanese from sneaking into San Francisco Bay.
Joel Brenner views that national trauma as a reminder that there are two varieties of intelligence failure — not only over-zealousness or abuse, but also “the failure to collect or understand critical information” in time to identify a threat and provide enough advance warning to prepare for it or, better yet, preempt it; and that public policy makers must address both.
Four years after the end of World War II, America saw another critical intelligence failure. The Soviets tested an atomic bomb in 1949, considerably sooner than U.S. experts had estimated. Three years later, President Harry Truman created the NSA. Its mandate was to eavesdrop on foreign governments and their agents, particularly those in the Communist world, because the cold war, which was fought in the shadows rather than on battlefields and the high seas, put a premium on covert means of offense and defense.
From its headquarters at Fort Meade, Maryland, the NSA went quietly about the highly technical business of gathering "signals intelligence," keeping its head down so successfully that the initials were said to stand for "No Such Agency." The CIA, by contrast, specialized in "human intelligence," i.e., information gathered by American agents and moles inside foreign governments. That made it a source of fascination to the public, and the subject of many a Hollywood thriller.
The nation's spymasters also undertook covert operations that sometimes went disastrously awry, putting the CIA at the center of a series of public embarrassments. One of the earliest and most damaging was the Bay of Pigs fiasco. Senator Wyden traces his jaundiced view of covert operations to that episode. His journalist father, Peter, wrote a revelatory and scathing book on the inside story of the invasion, which he likened to "Waterloo staged by the Marx Brothers." The same could be said of the ignominious end of the Nixon presidency, brought about by a wiretapping caper mounted at the behest of the White House by a ragtag band that included several former operatives of the FBI and the CIA.
Watergate shocked the American public and spurred many of its representatives in Congress to demand an investigation into the past activities of both organizations as well as the NSA and others. The result was the creation of two congressional committees in 1975, chaired by Frank Church (D-ID) in the Senate and Otis Pike (D-N.Y.) in the House of Representatives. Their hearings exposed secret, arguably illegal wiretapping, bugging, and harassment of American citizens, including Supreme Court justices, reporters, and government officials, all in the name of collecting intelligence about threats to national security. The most notorious case, first exposed in the 1960s and fully documented by the Church Committee, was the wiretapping of Martin Luther King, Jr. by the NSA and by the FBI under J. Edgar Hoover, who believed him to be part of a Communist conspiracy.
Thanks in large part to the Church Committee — the forerunner of the one that Dianne Feinstein now chairs — the NSA was no longer immune to public censure and strengthened oversight. The committee helped bring to light the NSA's Project SHAMROCK, which had been part of a 30-year surveillance of telegraphic and telephonic data coming into and out of the United States. Many of the senders and recipients were American citizens who were targeted without warrants or court authorization. Senator Church called it "probably the largest governmental interception program affecting Americans ever undertaken."
As a result of these investigations, Congress passed, and Jimmy Carter signed into law, the Foreign Intelligence Surveillance Act (FISA) in 1978. Its purpose was to buttress the Fourth Amendment's protection against unreasonable search and seizure by putting a layer of judicial review between the intelligence agencies and their surveillance targets — at least when those targets are U.S. citizens or permanent resident aliens. FISA has undergone numerous revisions over the last three decades. As currently written, it prohibits the government from intentionally targeting for electronic eavesdropping any "U.S. person" anywhere, or any foreigner located inside the U.S., without a warrant issued by a member of the special, secret Foreign Intelligence Surveillance Act Court (FISA Court). To get a warrant from the court, the government has to show "probable cause" to believe that the target is operating as an agent of a foreign power or a terrorist group.
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For more than three decades, the FISA Court — much like the NSA, whose surveillance activities it sometimes oversees — kept its head down. The court held secret proceedings in a secure vault first in the Justice Department, then later in the main federal courthouse in Washington, D.C. Its judges, chosen by the chief justice of the United States from the ranks of federal judges around the country, heard arguments almost entirely from government lawyers. All its decisions were classified, and very few were appealed, if only because potential plaintiffs were not aware that their communications had been intercepted, and if they had suspicions, they had no proof.
The basic post-Watergate compromise — that executive branch surveillance programs would be guarded from public scrutiny but closely overseen by all three branches of government — prevailed through the 1990s. By then, the Soviet Union had disappeared from the map.
With the cold war over, the new, increasingly preoccupying threat to America was personified by Osama bin Laden. Believed to have connections to the bombers of the World Trade Center in New York in 1993, he was indicted for the destruction of two U.S. embassies in Africa in 1998 and his organization, al Qaeda, claimed responsibility for the deadly attack on the USS Cole at harbor in Yemen in October 2000. The emergence of this new menace to America and its allies brought an upsurge in political and public support for aggressive surveillance of potential terrorists, and a muting of the concerns that had arisen in the 1970s about the past sins and excessive zeal of U.S. intelligence agencies.
FOURTH AMENDMENT TIMELINE
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
1791: Bill of Rights ratified, including the Fourth Amendment
In the 18th century, the zone of privacy protected by the Fourth Amendment was much narrower (but also more absolute) than it is today, then being limited to a person, his/her possessions and home or office. And, like all of the first 12 amendments, it initially only restricted the power of the federal government.
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1886:Boyd v. United States: Absolute protection for private papers.
In Boyd, the first major Supreme Court interpretation of the Fourth (and of the Fifth) Amendment, the justices held that all government attempts to procure a person's private papers — specifically, an invoice for plate glass allegedly imported without payment of customs duties — violated the Fourth Amendment's reasonableness clause with or without a warrant (and also the Fifth Amendment's self-incrimination clause). The Court also barred the government from introducing such evidence at a forfeiture trial. Although Boyd's specific holdings have been overruled, Justice Louis Brandeis wrote in his famous 1927 dissent in Olmstead v. United States that Boyd "will be remembered as long as civil liberty lives in the United States."
1887: The Interstate Commerce Act (1887) and the Sherman Antitrust Act (1890): Expanded federal criminal jurisdiction.
The first federal laws to regulate private industry. They expanded federal criminal jurisdiction, which in turn opened up new questions about search and seizure and hence new Fourth Amendment claims.
1914:Weeks v. United States: Can illegally obtained evidence be used in a criminal trial?
The Court held that police violated the rights of a man under the warrant clause when they arrested him, entered his home without warrants, and seized goods and papers that were then used to convict him of using the mail to transport lottery tickets. The government's refusal to return his property, ruled the Court, violated his Fourth Amendment rights. This established the "exclusionary rule" by which illegally obtained evidence cannot be used in a criminal trial.
1925:Carroll v. United States: Do police need a warrant to search your car?
The Supreme Court in this case recognized "a necessary difference" between a search for contraband in a stationary structure — a store, a house, etc. — and in a moving vehicle, such as a ship or an automobile, because the illegal goods could be moved quickly out of the jurisdiction in which the warrant must be obtained. The Court rejected the argument that there was no basis to search a suspect's car and thus refused to exclude the evidence, which was liquor transported in violation of the National Prohibition Act. This has become known as the "automobile exception."
1927:United States v. Lee: New technology opens a novel question.
A Coast Guard vessel's crew had probable cause to believe that a suspect's motorboat was in violation of revenue laws, including the Tariff Act and the National Prohibition Act. One of the Fourth Amendment issues in this case (there were others) was the patrol boat's use of a searchlight to illuminate cases of liquor on the motorboat's deck, after which the Coast Guard arrested the crew and seized the boat. "Such use of a searchlight is comparable to the use of a marine glass or a field glass," the Court ruled. "It is not prohibited by the Constitution."
1928:Olmstead v. United States: Did wiretaps violate the defendant's Fourth Amendment rights?
A bootlegger was convicted of violating the National Prohibition Act based on evidence obtained by wiretaps installed by federal agents outside his home without judicial approval. The Supreme Court, in a 5-4 decision, held that Fourth Amendment rights applied in cases of physical intrusion, but not to other forms of police surveillance (e.g., bugging, wiretaps passing across public wires). Since the officers didn't enter the person's home, it wasn't a trespass. Chief Justice William Taft wrote: "The amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants." In dissent, Justice Brandeis wrote that the Constitution "conferred against the government, the right to be let alone — the most comprehensive of rights and the right most favored by civilized men." This decision was overturned by Katz v. United States in 1967.
1961:Silverman v. United States: The physical intrusion of a listening device.
Police in Washington, DC inserted a "spike mike" into the wall of a house adjacent to a suspected gambling den. The microphone physically touched the heating duct in the suspected house, allowing police to listen to conversations within. The Court ruled this an "unauthorized physical penetration" of the premises, adding that it was thus unnecessary to contemplate the full "Fourth Amendment implications of these and other frightening paraphernalia which the vaunted marvels of an electronic age may visit upon human society. … At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion."
1967:Katz v. United States: The Fourth Amendment protects people, not places.
The government wiretapped a public phone booth with a microphone attached to the outside of the glass. The suspect who used this phone booth was convicted of illegal gambling but challenged his conviction, citing his Fourth Amendment rights. Writing for the 7-1 majority overturning the conviction (and overruling Olmstead), Justice Potter Stewart wrote: "One who occupies [a telephone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world." "The Fourth Amendment protects people, not places," Justice Stewart wrote.
1971:United States v. White: Don't talk to a bugged informant.
A defendant was convicted based on evidence obtained from conversations he had with an informant wearing a recording device. He claimed a violation of his Fourth Amendment rights, citing the Katzcase, and won on appeal. The Supreme Court overturned that decision, writing that "The Court of Appeals understood Katz to render inadmissible against White the agents' testimony concerning conversations that Jackson broadcast to them. We cannot agree. Katz involved no revelation to the Government by a party to conversations with the defendant nor did the Court indicate in any way that a defendant has a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police."
1976:United States v. Miller: Your bank statements are not "private papers."
The federal government subpoenaed a man's bank records and used them to convict him of possessing an unregistered still and related crimes. The Court of Appeals upheld his claim that the records fell within his protected zone of Fourth Amendment privacy. The Supreme Court disagreed, ruling that the subpoenaed materials were "business records of the banks," not "respondent's 'private papers' " and that "the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities."
1979:Smith v. Maryland: Subpoena for phone records is not search of customer.
Police asked the telephone company to install a "pen register" to record the numbers dialed by a robbery suspect. The Supreme Court affirmed his conviction, holding that people have no "legitimate expectation of privacy" regarding telephone numbers they dial because they "typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes." The Court noted two "discrete questions" in this case: "whether the individual, by his conduct, has 'exhibited an actual (subjective) expectation of privacy'" and "whether the individual's subjective expectation of privacy is 'one that society is prepared to recognize as "reasonable."' " Smith is the principal precedent for the proposition that the NSA's collection of call records and other telephone "metadata" is not a Fourth Amendment "search" or "seizure."
2001: Kyllo v. United States: You need a warrant for that thermal imaging device.
Federal agents trained a thermal imaging device on the home of someone suspected of using heat lamps to grow marijuana. They then obtained a search warrant on this basis and arrested the suspect, who was convicted despite his claim that the use of the imaging device was a warrantless search. Justice Antonin Scalia, writing for the 5-4 majority, reversed the conviction, saying that the Fourth Amendment draws "a firm line at the entrance to the house." He added: "Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant."
2012: United States v. Jones: GPS tracker on vehicle is a Fourth Amendment search.
Reversing a suspected drug dealer's conviction, the Court held that installing a GPS tracking device on a suspect's vehicle and using it to monitor his movements for four weeks was a Fourth Amendment search even though simply following the vehicle around would not be. It was also unconstitutional because it was not authorized by a valid warrant. Some members of the majority suggested in concurring opinions that the Smith rule that a person has no reasonable expectation of privacy in information conveyed to third parties was anachronistic in the digital age. NSA critics cite these concurrences in arguing that its collection of call records and other "metadata" is a Fourth Amendment search.
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Fred Dews and Stuart Taylor, Jr.
THE GAME CHANGER
Then, literally out of the blue on a sunny fall morning, came the clincher. Feinstein recounted to me what it was like watching television as the Twin Towers burned. She cannot get out of her head "the slap, slap, slap of bodies hitting the canopy next door." She, like all but one of her colleagues in the Senate, joined the bipartisan rush to adopt the USA PATRIOT Act of 2001 (Patriot Act), which widened the scope of the government's electronic surveillance, search and seizure, and other investigative powers.
In the months before 9/11, Joel Brenner had been trying cases as a founding partner in a Washington, D.C. law firm. As he walked home from work that Tuesday evening, fires were still burning at the Pentagon. It was then that he decided he wanted to go to work for "the people who were chasing the bastards who were blowing us up." He spent four years as the NSA's inspector general, then three years as the nation's top counterintelligence official, and then another 15 months as the NSA's senior counsel.
Ron Wyden also joined the nearly unanimous vote for the Patriot Act shortly after the 9/11 attacks. But before long he came to a conclusion that was nearly the opposite of Feinstein's and Brenner's. He worried that the pendulum was swinging too far away from a proper regard for the Constitution and would inevitably lead to abuses by the intelligence community. In 2003, he led the battle in the Senate that defunded the Total Information Awareness program, a Pentagon unit established to hunt down terrorists by scouring mountains of data to reconstruct the electronic footprints of millions of people.
However, just as Wyden feared, the prevailing sentiment on Capitol Hill was that the reforms of the 1970s had impeded the NSA from uncovering the 9/11 plot in time to prevent the attacks. It was in that atmosphere that two new programs were put into place during George W. Bush's presidency.
In 2006, the FISA Court secretly authorized the NSA to collect from phone companies the records of trillions of phone calls made within, to, or from the United States for analysis and storage. The purpose of this gigantic undertaking was to identify foreign terrorists' actual, possible, or potential collaborators who were on American soil. It came to be known as the "bulk phone records program," or the "Section 215 program," after a provision in the Patriot Act that allowed the government to demand access to "any tangible things," so long as the government specified that they were "relevant to an authorized investigation… to protect against international terrorism or clandestine intelligence activities."
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Two years later, near the end of the Bush presidency, Congress passed Section 702, an amendment to the Foreign Intelligence Surveillance Act, authorizing the targeting of communications of "foreign persons who are located abroad." This provision became the basis for sweeping, clandestine NSA programs including one called PRISM, an acronym for "Planning Tool for Resource Integration, Synchronization, and Management." It was actually a gargantuan collection tool that enabled the NSA to gather from U.S.-based Internet companies hundreds of millions of emails, Internet voice calls, videos, photos, chat services, stored data, and other private Internet communications, if the targets were "reasonably believed" to be non-U.S. persons overseas who possessed "foreign intelligence information."
Unlike the phone-records program, PRISM made available to the NSA the contents of the communications that were collected. At least nine U.S.-based companies were compelled by the surveillance court to cooperate with the NSA in facilitating access to PRISM data: Google, Facebook, Microsoft, Apple, Yahoo!, Paltalk, AOL, YouTube, and Skype. The companies rarely appealed court orders, and complied with alacrity. Patriotism was certainly a factor, but so was their reliance on the government for business, security clearances, help with network security, and other benefits.
Looking back on the relentless growth of the NSA's mandate in the aftermath of 9/11, the usually upbeat, 6-foot, 4-inch Wyden knits his brow in frustration over how few of his colleagues in the Senate wanted to hear about "the always-expanding surveillance state that hour by hour chips needlessly away at [our] liberties [without] making us any safer." As he sums it up, the overall message he kept trying to deliver in the pre-Snowden era was that "When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned, and they will be angry." When I spoke to him about his struggle during those years, he recalled it as "dispiriting and lonely."
As a member of the Intelligence Committee that Feinstein chairs, Wyden has been obliged to keep the secrets that the executive branch shares with it. So he has had to tread carefully when questioning administration witnesses in public hearings. Nonetheless, in March last year — three months before the Snowden leaks — Wyden asked James Clapper, the director of national intelligence, at a public hearing: "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?"
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"No," responded Clapper, but he added "not wittingly" in response to a follow-up question. Even with the caveat, it was a falsehood, though it was not widely chronicled until after the Snowden leak. Clapper claims it resulted from an honest misunderstanding of the question.
Insofar as Wyden's admonitions were applauded in previous years, it was most frequently by civil-liberty activists like Jameel Jaffer, who vigorously opposed the government's aggressive response to 9/11. When the planes hit the Twin Towers, Jaffer was just starting what would probably have been a highly lucrative career working on equity derivatives at Davis Polk & Wardwell, one of the nation's top corporate law firms. A graduate of Harvard law school and editor of its law review, he began to dedicate his spare time to pro bono work with the ACLU, which was representing some of the more than a thousand Muslim immigrants in the United States who were rounded up on immigration charges in the months following the attacks. This work proved much more satisfying to him than his corporate work. "We were their only connection to the outside world," he told me.
None of the detainees turned out to be terrorists. And Jaffer, born to a Muslim family in Canada, had found his calling. He left his firm and went to work full time for the ACLU.
But just as Wyden belonged to a small minority in Congress, Jaffer's opposition to the government's response to 9/11 put him at odds with U.S. public opinion. The near-unanimous votes in Congress and in the polls reflected overwhelming support for the Patriot Act.
However, that mood, both on Capitol Hill and among the public, faded over the course of the dozen years between 9/11 and the Snowden leaks, first gradually, then precipitously, as the military adventures the George W. Bush administration launched in Afghanistan and Iraq as part of the global war on terror turned into costly quagmires. In the second term of Bush's presidency, more and more Americans questioned his judgment and wanted a return to normalcy, a sentiment that helped Barack Obama win the White House. But thanks to legislative gridlock, a federal shutdown, and budget sequestration, his election did not stanch the hemorrhaging of the citizenry's confidence in its government.
THE WHOLE HAYSTACK
At the same time that public trust in the government was in something close to free fall, the digital revolution was gathering momentum, and the NSA was taking full advantage of it. Moore's Law had made possible an exponential leap in the capacity to gather, store, and sift through trillions of electronic communications, both internationally and within the United States. That gave the intelligence agencies potentially invaluable tools for tracking spies, criminals, and — ever since 9/11 — the new Public Enemy No. 1: terrorists. With terrorists using cell phones, the Internet, and commercially available encryption software to conceal themselves, communicate covertly, and plan acts of mass murder, officials charged with defending the United States were all the more determined to make the most of the new means of gathering and analyzing information.
The result was a particularly dramatic manifestation of the tendency for a transformative technology to outpace its own regulation. Before the Snowden leaks, the two most significant examples of this phenomenon were the invention of the steam engine, which made possible the Industrial Revolution but also triggered the process of climate change, and the harnessing of the power of the atom, which could help light up the world with clean energy but could also incinerate it in global thermonuclear war. The Snowden leaks brought to light a third example: a revolution that has made it possible for us to communicate more easily, but also for our government to collect and analyze our communications on a scale that the phrase "Big Data" does not begin to capture. This exponential leap in the ability to collect and crunch data has — to a dizzying degree and at a dizzying pace — run roughshod over laws, standards of conduct, and international norms, leading many observers to conclude that the law as currently written is inadequate to maintain the balance between national security and individual privacy called for by the Fourth Amendment.
Suddenly, defenders of robust, proactive national security policies like Feinstein and Brenner are on the defensive, and long-time critics like Wyden and Jaffer, finding themselves to be in tune with a considerable portion of American public opinion, are having less trouble getting a respectful, sympathetic hearing. While the surveys have been mixed, a Pew Research Service poll last summer indicated that, for the first time in a decade, a majority of Americans were more concerned about the government infringing on their civil liberties than about a potential terrorist attack, and also that a majority saw Snowden as a whistleblower, not a traitor or a criminal.
As for the NSA, it found itself in double jeopardy — and a paradoxical one: it was accused of rogue behavior in its snooping, and of incompetence in protecting the information it had collected. The once nearly anonymous agency had a new nickname: "No Secrets Anymore."
Yet while a huge amount of highly classified and previously protected information is now in the public domain, the contents of that information are widely misunderstood. That is partly because the material itself is so copious and esoteric that it is hard to digest and summarize accurately, especially amid a feverish controversy. Many news reports have created the mistaken impression that Americans are already living in an Orwellian nightmare, with Big Brother routinely listening to or reading transcripts of the phone conversations of ordinary citizens going about what they think are their constitutionally protected private lives. Snowden has done everything he can to reinforce that impression, starting with his own contributions to the debate first from Hong Kong, then from Moscow. In an "alternative" Christmas message, he warned that a child born today will "never know what it means to have a private moment," suggesting that the U.S. government is already bugging our personal lives.
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However, the material collected by the NSA under Section 215 identified only which phone numbers were used to call other phone numbers, when calls were made, and how long they lasted; the data gathered did not include the callers' names, their precise locations, or what was said in the conversations.
Jaffer finds no comfort there, given the ease with which the NSA could track down names and locations if it chose to. "The NSA is tracking virtually every aspect of Americans' lives," he says. "Who they communicate with, who they associate with, what they buy online, what they do online… I'm not suggesting that they're not trying to go after terrorists. They are. But they're draining the ocean in order to catch a few fish." Jaffer is convinced that the NSA has abused its powers. Even if it has not done so, he believes that Americans' knowledge that their phone records are in the agency's computers is sure to have a "chilling effect" on their interactions with one another and with their government.
Wyden agrees with Jaffer. Phone records, he says, can be tremendously illustrative of a person's private life: "If you know who a person called and when they called and generally where they called from, you know a tremendous amount about them" — political and religious affiliations, sexual behavior and extramarital affairs, problems with alcohol, drugs, or gambling, medical conditions, and more.
The NSA argues that it needs to comb through the coordinates of as many of these conversations as possible in the hunt for the rare but critically important phone call between a foreign terrorist and a collaborator in the United States. Although it is obvious that not all foreign terrorists' phone contacts are witting participants in a conspiracy, or even aware that there is a conspiracy, Keith Alexander, the former director of the NSA, is credited with what has become a pithy defense of the proposition that more access is better and total access is best: when searching for needles in a haystack, "you need the whole haystack."
Brenner believes that the Alexander Doctrine is not a cover for spying on Americans. NSA analysts are totally fixated on foreign targets, he stresses, and have no interest in the private lives of U.S. citizens whose phone records are gathered. For this and other reasons, Brenner says, the chance of a citizen's record being scrutinized is "infinitesimal — like winning the lottery."
Feinstein agrees and believes that the public would too if it understood the nature of the phone records program. "It made my heart stop," she told a cluster of reporters and staffers after a hearing in late September, when the media created "the impression that Americans are being searched and 'surveilled' willy-nilly. They are not!"
I got a dose of her strong feelings when I used the word surveillance during an interview. She sat bolt upright and exclaimed: "You just did it! You said 'surveillance.' It isn't! It's a data-collection of phone numbers and times of phone calls from someone who's a suspected terrorist abroad to someone in this country."
Over the five years that she has been chairman of the Intelligence Committee, Feinstein has seen more inside information on NSA activities than most of her fellow lawmakers. She is convinced that, since the FISA reforms of the seventies put safeguards and multiple layers of oversight in place, there has been no evidence of the NSA's seriously violating those strictures. She is also convinced that signals intelligence is, if anything, more indispensable than ever at a time when human intelligence — that is, information from undercover U.S. operatives operating abroad or inside hostile organizations like al Qaeda — is so hard to come by. That leads her to worry that curbs on the phone records program might increase the exposure of Americans to danger from terrorists and other enemies, perhaps including mass-casualty cyber, biological, or even nuclear attacks.
Brenner, too, vouches for the "superb compliance and legal departments" and "rigorous, indeed severe auditing protocols" at the NSA as well as its hand-in-glove cooperation with the Justice Department. "No other nation has such a leash on its intelligence services," asserts Brenner. He draws a stark distinction between the Snowden revelations and those that the Church and Pike Committees brought to light in the seventies. "This one is different. There has not been a whiff of intelligence abuse for political purposes. [The controversy concerns] practices approved by Congress and the federal courts and subject to heavy and effective oversight."
Wyden, Jaffer, and other critics believe the contrast between the current era and the Watergate-era abuses is a red herring. The real problem is not the NSA's violation of the post-Watergate rules but the adherence to those rules, which permit what they and other critics regard as unconstitutional forms of search and seizure. In pressing this point, Wyden invokes the historic origin of the Fourth Amendment itself, which grew out of the intention to prevent abuses of authority like those of the British colonial officials who sent Redcoats into law-abiding citizens' homes to conduct indiscriminate searches under "general warrants." Wyden sees the NSA's empowerment to collect phone records by authorization of FISA judges as a latter-day version of such abuses.
Jaffer agrees, adding that the process Snowden revealed was "structurally incapable of serving as a meaningful check on government surveillance [because] it hears arguments only from one side [and] behind closed doors…. We have given the NSA this sweeping power to monitor the communications of ordinary people. The scandal is what's legal."
The PRISM program presents a different kind of challenge to civil liberties because of the fact that, unlike the phone records program, it collects the contents of communications. And although it is forbidden by law from targeting "U.S. persons" (citizens and resident aliens) or even foreign visitors without individual warrants, Jaffer believes that the program was "designed in a way that makes the large-scale collection of Americans' communications inevitable," since the global dragnet cannot help but catch U.S.-based users of the World Wide Web.
The NSA also sweeps in billions of international telecommunications, including many to or from Americans, by tapping cables that flow through U.S. territory en route to foreign destinations. It has stored information about the locations and movements of hundreds of millions of cellphones around the world and their owners, including many Americans affected "incidentally" (that is, without being specifically targeted); collected hundreds of millions of contact lists from personal email and instant messaging accounts outside the U.S., including those of millions of Americans who have contacts abroad; sought to undermine encryption standards and products that are used not just by terrorists but by banks and other legitimate businesses to secure their confidential data; secretly broken into the main communications links to Yahoo!, Google, and, it is suspected, Microsoft data centers abroad, leading to howls of outrage both from foreign allies and from corporate headquarters of Internet companies in Silicon Valley and Puget Sound, the two epicenters of the American private sector's most competitive major enterprise.
After the Snowden leaks, many of those companies hardened their encryption and reinforced their firewalls to protect themselves from their own government. They feared that NSA collection of their customers' private data would lead many to switch their business to foreign competitors, and that U.S. companies may be whipsawed between obeying FISA Court orders to spy abroad and incurring penalties for violating foreign governments' privacy rules.
Brenner, while an overall defender of the NSA and its practices, has acknowledged that American companies will "probably [lose] tens of billions of dollars in business to their [European Union] competitors," though he attributes that move to the competition to "the incomprehensibly silly idea that European security services do not collect data on EU citizens." In other words, everyone is spying on everyone else, even if not on the scale of the NSA.
The capstone to this whole sorry tale is the impact it has had on U.S. diplomatic relations. While Americans, understandably, have focused on the debate over their own liberty, privacy, and security, foreign audiences have been mesmerized by Snowden's revelation of massive U.S. surveillance of leaders, governments, and citizens around the world.
The most damaging disclosure was that German Chancellor Merkel's cell phone was on the NSA's target list. That flap moved Feinstein to blast the NSA for spying on friendly foreign leaders without keeping the congressional intelligence committees, or the president, "satisfactorily informed." She was concentrating her ire on the process — and protecting Obama from the inevitable question, "What did the president know and when did he know it?
DOES SURVEILLANCE KEEP AMERICA SAFE?
With all this wreckage and ruction at home and abroad, the question of whether the benefits of massive intelligence-gathering programs justify the costs — the infringement on privacy and the harm done to relations with our allies — has been vigorously but inconclusively debated. Answering this requires asking another question: What are the national-security benefits of these programs? Have they helped nip deadly conspiracies in the bud?
With respect to the phone records program, the disagreement between Senators Feinstein and Wyden has been especially stark, and it is reflected in a bipartisan debate underway over the past few months on the Hill.
Feinstein believes if the phone records program had been up and running in 2001, it might have alerted the government that Khalid al-Mihdhar, a major al Qaeda operative from Saudi Arabia who was on NSA and FBI watch lists, was in San Diego, making calls to an al Qaeda safe house in Yemen. That information might have been a giveaway that the plan had "gone operational." Instead, the NSA sleuths tracking terrorists thought al-Mihdhar was overseas. He was one of the five hijackers of American Airlines Flight 77, where 189 people (including the hijackers) were killed when it crashed into the Pentagon.
Keith Alexander has posited the same counterfactual speculation. Playing it forward, he and Feinstein both believe that ending the phone records program would increase America's vulnerability to another attack.
By contrast, on the basis of what Wyden has seen as a member of the Intelligence Committee, he is skeptical that the program would have made a difference on 9/11 or "has actually provided any unique intelligence." He believes that while the NSA's phone records program may have made marginal contributions, other, less controversial methods were more important. Alexander's deputy, Chris Inglis, who has also left the agency, acknowledged in an NPR interview in January that the phone records program had played a critical role in only one relatively minor case, which did not involve a planned attack, but maintained that it had "made a contribution" in another 11 cases. One example, according to the NSA, was a phone record that (in combination with a PRISM Internet tipoff) helped foil a plot to blow up subways in New York City in 2009 — a claim that has elicited deep skepticism from critics.
WORD ON THE STREET...
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These publicly acknowledged instances may not sound like much after many years and billions of dollars spent looking for those needles in the haystack. But there may be more conclusive and impressive episodes where the NSA played the lead role but cannot brag about them because of sensitivities about the methods used or because the threats in question are ongoing. In any case, intelligence experts both in and out of government stress that it is rare for any one agency or program to be the sole player in a successful surveillance operation.
"You put together a mosaic, with a lot of different pieces of information," explains Brenner. "So the more you have the better." Still, he adds — and here, unlike Feinstein, he puts the burden on the NSA to prove its case — "Congress shouldn't allow [the phone records program to continue] unless it is quite satisfied that the risk of terrorist attacks in the U.S. will rise in some significant if not measurable way if we don't do it."
To be certain of meeting that standard would require a crystal ball. Still, Brenner has captured both the obligation and the dilemma faced by decision-makers in all three branches of the federal government. Policymaking and regulation in the executive branch, legislation on the Hill, and adjudication in the courts — all are part of the government's overall effort to manage an uncertain future. That effort is inherently based on guesswork, informed by what is known about the past and present. Since the track record of the phone records program to date is, at best, mixed, it is no wonder that there is daylight between Feinstein and Brenner, not to mention a night-and-day difference between the two of them and Wyden and Jaffer.
The PRISM program poses an even trickier version of the cost/benefit question: it is easier to justify its efficacy, but because it goes after the contents of messages, not just their origin and destination, it is more intrusive on the liberties of the people whose communications it scoops up. Moreover, while PRISM is more restrictive in its formal mandate (i.e., it is targeted only at foreign bad actors), in practice it does pry "incidentally" into the Internet traffic of many law-abiding U.S. citizens.
Yet there's no denying that PRISM's mining of emails and other Internet messages has produced a mother lode of useful information. An internal NSA document leaked by Snowden described the program as "the most prolific contributor to the President's Daily Brief" and the NSA's "leading source of raw material, accounting for nearly one in seven [of all the intelligence community's secret] reports."
More to the point, PRISM has often contributed to the collection of actionable intelligence used in the fight against terrorism. Even Wyden, the NSA's strongest congressional critic, acknowledges as much. He and his ally on the surveillance issue, Senator Mark Udall (D-Colo.), said in a joint statement last summer that "multiple terrorist plots have been disrupted at least in part because of information obtained under Section 702."
WHAT'S TO BE DONE?
Jaffer has long contended that PRISM is, in its essence, a violation of the Fourth Amendment as well as the First Amendment right to freedom of association. He was the lead attorney for a group of ACLU clients — lawyers, journalists, and human rights advocates — in a challenge to Section 702 that the Supreme Court rejected, in a familiar 5-to-4 split, in February 2013. That was, of course, pre-Snowden. But the leaks have shown no sign of nudging the judiciary toward anything like a consensus. Quite the contrary. In December alone, a U.S. district judge in the District of Columbia resoundingly declared the phone records program unconstitutional, and 11 days later another federal judge, in Manhattan, just as forcefully upheld the program.
That same month, President Obama — a chief executive who is highly deliberative by nature and trained in constitutional law — received a report from a panel of five former government officials recommending new or tightened restrictions on NSA practices.
INSIDE THE NSA:
We Brought In a Recording Device So You Don't Have ToBrookings scholars Benjamin Wittes and Robert Chesney took recording equipment into the NSA's headquarters at Fort Meade, MD to interview key NSA staff. Listen to all five podcasts on Lawfare
A number of those proposals were reflected in Obama's speech at the Justice Department on January 17. He walked a fine line between responding to the global outcry and, as he clearly saw it, protecting the NSA's ability to protect America. Among the measures he announced was an immediate order for the NSA to limit its surveillance of phone records to connections that were two degrees of separation (or "hops") from a known or suspected terrorist, rather than the three degrees that had been permissible before. The president also called on the executive branch and, ultimately, Congress to come up with a plan for warehousing the data in private hands, with a requirement that counterterrorist agencies seek access the records on a case-by-case basis.
As Obama made clear, many features of his plan require review and refinement within the executive branch. As the designated custodian of these records, the private sector, too, will have an important role to play, and not necessarily one it welcomes. The phone companies have been understandably skittish about helping the government — as many will see it — pry into the lives of their customers.
And then there is the legislative branch, which was the source of the restrictive laws on intelligence activities in the seventies and the eager partner of the executive branch in undermining those laws during the two pre-Snowden decades.
Many in Congress were quick to spin Obama's decisions and suggestions as consistent with their own. Wyden and two Senate allies, Udall and Martin Heinrich (D-N.M.), issued a joint statement in January saying they were "very pleased that the president announced his intent to end the bulk collection of Americans' phone records," even though the president had made no flat assertion to that effect.
Feinstein and her House counterpart, Representative Mike Rogers (R-Mich.), said, more accurately, that they were "pleased the president underscored the importance of using telephone metadata to rapidly identify possible terrorist plots," a task that they — like the NSA — believe requires continuing bulk collection.
Jaffer shared their interpretation of Obama's overall message — "He tinkered with the margins, but he seems to have rejected, at least for now, any far-reaching changes, which means that he has accepted, at least for now, the proposition that the NSA should be collecting essentially everything" — though not their reaction to it, because the bulk collection is the very thing he and other critics want to see changed.
FISC court document on ACLU information requests (detail) Source: FISC Courts
In March, the House Intelligence Committee's ranking Republican and Democratic members said that they were close to agreement on legislation that would end bulk collection of phone records. Shortly thereafter, President Obama unveiled a proposal that would do just that. Under the new plan, the government would no longer systematically collect and store Americans' calling data, which would instead reside in the hands of phone companies. Only with permission from a judge could the government obtain specific, suspect records.
In at least one area of reform— more transparency and accountability — there is a degree of convergence among Wyden, Feinstein, Brenner, Jaffer, and many others who differ over other aspects of surveillance and reform.
Wyden has long since staked out his objection to a "secret court" — "the most bizarre court in America" he calls it — which deliberates behind closed doors and hears only from government counsel, then issues interpretations that are classified. "The law should always be public," he says. "How do Americans make informed judgments about policies if there's a big gap between the laws that are written publicly and their secret interpretation?"
Brenner agrees that "we have a massive over-classification problem," adding, "Look, democracies distrust power and secrecy, and intelligence organizations are powerful and secret. The only way to square that circle is if the public understands what the rules are and has reason to think they are being followed." While he regards Snowden as "a traitor and a scoundrel," he faults the government for not having publicly revealed and explained the phone records program years ago. Had that happened, the American people would have had "the kind of debate that's happening now" — but in a less sensationalized and more deliberative atmosphere.
It is ironic that in the wake of the Snowden leaks the NSA took steps toward precisely that kind of openness with its decision last December to allow Benjamin Wittes and Robert Chesney, scholars in the Governance Studies program at Brookings, to interview five top officials of the agency at its Fort Meade headquarters. The result, posted online as a series of Lawfare blogs and podcasts, was an extraordinarily candid, sometimes eye-popping explanation of the inner workings of the intelligence-gathering process, the oversight and enforcement procedures, the relationship with the private sector, the constant race to keep up with new technologies, the means by which Snowden was able to pilfer the material he publicized, and the steps that are being taken to prevent another such breakdown in security.
But the NSA's decision to allow those interviews, while voluntary, was almost surely due to the public pressure it was under. Wyden and his congressional allies have long urged that the government be required to make periodic reports on its activities, to the extent permitted by "protection of sources and methods" and other strong national security needs. Wyden would also like to see disclosures of the breadth of information collection and open acknowledgment of violations of law by the NSA or other agencies. He believes that such transparency would have a braking effect on excessive surveillance.
Feinstein and her allies would also require greater transparency, but not as much as Wyden advocates, and mostly in the form of codifying in statute the steps already taken by the NSA. Again, Brenner is thinking along similar lines. He has written that the dilemma created by the need to protect both privacy and national security "can be resolved only through oversight mechanisms that are publicly understood and trusted — but are not themselves entirely transparent."
As President Obama recognized in his January 17 speech, an additional way to ensure more fully informed decisions by the FISA Court and to raise public trust in its work would be to encourage or require that it hear from independent voices rather than from the government alone. In the speech, Obama called on Congress to establish a panel of public advocates who would represent privacy interests before the FISA Court, an idea that he had first floated the previous summer. As Jaffer says, "When a court is presented with only one side's arguments, it's inevitable that the court is going to end up siding with that side more often than it ought to."
Feinstein and Brenner as well as Jaffer and Wyden favor some version of such a change, as do Alexander, Obama, and most other players in the NSA drama; but Wyden and Jaffer would give the advocates more power than most of the others would. Feinstein, for example, would leave it to the judges to decide in which cases to appoint "friends of the court to provide independent perspectives," while Wyden and Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) prefer a permanent office of "special advocate." The advocate would have the right to oppose the government in important cases; to ask to be heard even if uninvited by the court; and to appeal surveillance court decisions with which the advocate disagrees. Somewhere in this mixture of proposals there is surely a compromise that will ensure that independent, security-cleared lawyers will have the opportunity to expose the weaknesses in the government's arguments without turning every case into a legal donnybrook.
WORDS FROM THE AUTHOR
Feinstein believes that there is a meta-problem more vexing and more important than the fate of any one intelligence program. The biggest challenge, as she sees it, is using the debate and reform of NSA activities to begin repairing "the destruction of faith in our government," a blow to national security and national morale that the Snowden leaks have exacerbated.
She is surely right about that, and that makes it all the more important to put the onus on the American people's representatives in Congress to join the president in making the tough choices. As Brenner says, "If you have to make a recorded vote on whether to give this authority to an agency, or if you're in an agency and have to decide whether you want the authority, you're asking yourself how you're going to look when the bomb goes off. And that's a scary position to be in. That's called having responsibility. And people who've actually got the responsibility talk and behave differently than people who don't."
No one has more responsibility than President Obama himself. While he is not commonly viewed as the nation's Spymaster-in-Chief, that function does come with his job. He sees the most highly classified intelligence every morning. He is in a position to judge its utility over time and, therefore, to make judgments about "the sources and methods" by which it is collected. And the buck stops on his desk if the system fails to anticipate a Pearl Harbor or a 9/11. No doubt that aspect of his job helps explain what seems to some of his critics a disconnect between his strong civil libertarian roots and his professorial knowledge of the Constitution on the one hand, and his essentially protective posture with regard to NSA surveillance on the other.
Whether the American people and their representatives in Congress will support the president, Feinstein, and others who want to maintain much of the status quo depends on there being more public trust in government than there is now. The distrust evident in the polls is directed at both the legislative and executive branches.
STUART TAYLOR, JR.
is an author, a freelance journalist, and a Brookings nonresident senior fellow. Taylor has covered the Supreme Court for a variety of national publications, including The New York Times, Newsweek, and National Journal, where he is also a contributing editor. His published books include Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It. In addition to his work as a journalist and scholar, he is a graduate of Harvard Law School and practiced law in a D.C. firm.
In addition, there must be a critical mass of the public willing to live with not just one permanent conundrum but two. The first, which is at the heart of the problem, is the inherent tension between national security and individual privacy. The second, which is evident in the search for a solution, is the severe limit on the degree to which transparency can be reconciled with functions of government that must be opaque — that is, secret — in order to be effective.
The challenge is captured in the most famous sentence that F. Scott Fitzgerald ever wrote, in an essay three-quarters of a century ago: "The test of a first-rate intelligence is the ability to hold two opposed ideas in mind at the same time and still retain the ability to function." That is also the test of a first-rate intelligence agency in the service of a robust democracy.
Like other products of the Institution, The Brookings Essay is intended to contribute to discussion and stimulate debate on important issues. The views are solely those of the author.
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