Hayden's statement from Oct 2002 on liberty and security

[John Gilmore]

http://www.nsa.gov/releases/relea00072.html

While testifying to a joint hearing of the House and Senate
intelligence committees a year after 9/11, Michael Hayden, as NSA
Director, testified about NSA's response to 9/11.  In closing, he
said:

38. When I spoke with our workforce shortly after the September 11th
    attacks, I told them that free people always had to decide where
    to draw the line between their liberty and their security, and I
    noted that the attacks would almost certainly push us as a nation
    more toward security. I then gave the NSA workforce a challenge:
    We were going to keep America free by making Americans feel safe
    again.

39. Let me close by telling you what I hope to get out of the national
    dialogue that these committees are fostering. I am not really
    helped by being reminded that I need more Arabic linguists or by
    someone second-guessing an obscure intercept sitting in our files
    that may make more sense today than it did two years ago. What I
    really need you to do is to talk to your constituents and find out
    where the American people want that line between security and
    liberty to be.

40. In the context of NSA's mission, where do we draw the line between
    the government's need for CT information about people in the
    United States and the privacy interests of people located in the
    United States?

    Practically speaking, this line-drawing affects the focus of NSA's
    activities (foreign versus domestic), the standard under which
    surveillances are conducted (probable cause versus reasonable
    suspicion, for example), the type of data NSA is permitted to
    collect and how, and the rules under which NSA retains and
    disseminates information about U.S. persons.

41. These are serious issues that the country addressed, and resolved
    to its satisfaction, once before in the mid-1970's. In light of
    the events of September 11th, it is appropriate that we, as a
    country, readdress them. We need to get it right. We have to find
    the right balance between protecting our security and protecting
    our liberty. If we fail in this effort by drawing the line in the
    wrong place, that is, overly favoring liberty or security, then
    the terrorists win and liberty loses in either case.

42. Thank you. I look forward to the committees' questions.

Now we know a small part of what he was really talking about.  At
least he had the balls to mention it.  But who among us could suspect
that when Congress responded by Patriot Act tune-ups making many kinds
of wiretapping easier, NSA's reaction was to ignore the laws, treating
the illegality of its operations as a "classified technique" for
surprising the "secret enemy under our beds".  Anyone who had said NSA
was a rogue that ignored the laws, before or after 9/11, was either
called paranoid, unrealistically cynical, or "against us and for the
terrorists".

Read this again:

    Practically speaking, this line-drawing affects the focus of NSA's
    activities (foreign versus domestic), the standard under which
    surveillances are conducted (probable cause versus reasonable
    suspicion, for example), the type of data NSA is permitted to
    collect and how, and the rules under which NSA retains and
    disseminates information about U.S. persons.

Now we find out that NSA has crossed each of these lines.  It is now
focusing domestically.  It now uses a "reasonable suspicion" standard
adjudicated by its own staff.  It is collecting all types of data "and
how!", apparently retaining that data indefinitely, and disseminating
it as it sees fit (to the FBI, at least).

In the open crypto community, we noticed this curious part of his
speech, but generally didn't engage with him.  Personally I felt that
whatever I said would be ignored, just as my concerns were ignored
during the entirety of the 1990's, in the Clipper Chip debacle and the
Export Control madness.  We were ignored until we forced change upon
NSA with the courts and, in partnership with business, in Congress.
We are having to take the same routes today (though business is now
against us, since business is up to its eyeballs in spying).

Did anyone else respond to Mr. Hayden at that time, and if so, what
reaction did you get?

	John

PS: NSA's web site SIGINT FAQ still says they don't
"unconstitutionally spy on Americans".  It raises some guff about the
Fourth Amendment and strictly following the laws.
(http://www.nsa.gov/about/about00020.cfm) But I hear that if you're
discussing something classified, it's not only acceptable to lie, but
it's actually required.

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