[This is Larry. G’s off this week; he deserves a hiatus, but he’s left me to pick up some of the pieces of his latest project. On September 5 The Guardian[1], the New York Times[2] and Pro Publica[3] released major articles about the NSA’s ability to decrypt confidential communications. The general consensus was that we and our British counterparts have made astonishing progress in breaking the encryption used by the world to protect its telephone conversations, emails and so forth. G covered this in the revised Timeline he put out on September 7.[4]What he didn’t cover, however, was the DNI’s response to this most recent set of leaks. So we’ll do that right now.]

First things first! As usual, Edward Snowden furnished the paperwork that supports the recent stories. Most of it seems to involve budget documents submitted to Congress in 2012 to explain the intelligence budget for the current fiscal year.[5] The Washington Post released part[6] of that material on August 29, 2013,[7] but left a lot out.[8] The new documents add a few pages, but still we have only a small portion of what might be available. Are there more budget documents (and revelations) to come?

Anyway, the question for today is, How did the Director of National Intelligence react to the latest disclosures? Well, he did what smart bureaucrats often are told to do: he issued a statement to get ahead of the problem, and he did it quickly. On September 6 he made two points:

  1. The public shouldn’t be surprised if NSA spends a good part of its time trying to offset the effects of encryption. Other nations use encryption to hide their secrets, and so do various international bad guys, such as terrorists, cybercriminals and human traffickers. We wouldn’t be doing our job if we didn’t try to counter that.[9]
  2. But yesterday’s disclosures go beyond the pale. They gave our adversaries a road map “about the specific techniques we are using to try to intercept their communications in our attempts to keep America and our allies safe and to provide our leaders with the information they need…” to make critical decisions about national security.[10]

Point 1

This is interesting. Yes our Government has made great progress in code breaking, and we’re going to use these new tools to spy on others. But there’s no reason to be concerned.  It’s traditional; all Governments work hard to learn each other’s secrets.[11]

The argument is true as far as it goes. In this country we’ve dealt with spies as far back as our Revolutionary War. No doubt you remember the story of our first traitor-General, Benedict Arnold. He was scheduled to meet with George Washington one September day in 1780, but instead left – he said – for his garrison at West Point, N.Y. But he didn’t go there, either. Instead he disappeared. Why? Well, probably because he had met with a British emissary, a Major John Andre, earlier in the month and Major Andre was caught, trying to get back to British lines and carrying letters in Arnold’s handwriting.[12]

Benedict Arnold escaped, but Major Andre did not. Instead, he was examined by a “Board of General Officers;” the Board determined that he was acting as a spy; and in accordance with “the Law and usage of Nations,” recommended that Major Andre be executed.[13]

You see, Major Andre was not in uniform when Washington’s troops arrested him. (If he had been, he probably wouldn’t have made it through the lines to General Arnold.) The fact that Major Andre traveled as a civilian pretty much established that he was on a spying mission. No doubt George Washington understood that. After all, he had his own spies on the British.[14]

Things haven’t changed that much since Washington’s time. Nations spy, but people caught in the act are punished.[15] And what law is applied? Well, the law of the state where the spy is apprehended. In this country, for example, we have numerous statutes that might cover aspects of spying, depending upon the facts and circumstances.[16] I’m not sure what laws the Russians, the Chinese, or the Iranians for that matter would use in similar cases, but most likely they are at least as stringent as ours.

On the other hand, the DNI memo seems to conflate different kinds of spying. What’s proper and what isn’t? It’s one thing to spy on foreign nations, their leadership, war plans and so forth. That’s traditional. But should the NSA spy on criminal activity, even of the transnational kind? Should they take the lead in tracking the drug trade, human trafficking and so forth? Personally I don’t think so. That’s more of a law enforcement function, and should be left to the criminal justice system, Interpol, and the people who know how to secure convictions that survive on appeal. But of course my opinion doesn’t count at NSA.

Or for that matter, should the NSA get into spying on industry? Other countries have technology, trade secrets, etc. that they encrypt, store on servers, talk about on the telephone, and coordinate, depict and edit on the internet. Think of all the secrets the U.S. could pick up with our superior technology! Our competitors work hard to get that kind of information.

Well, I’m happy to report that last Sunday the DNI specifically ruled out industrial espionage. “What we do not do, as we have said many times, is use our foreign intelligence capabilities to steal the trade secrets of foreign companies on behalf of – or give intelligence we collect to – US companies to enhance their international competitiveness or increase their bottom line.”[17]

Point 2

So enough of Point 1; what about the DNI’s second point? Did the recent media disclosures really provide the bad guys of the world a “road map” to NSA’s eavesdropping techniques? Are they forewarned, and therefore forearmed?

Or should NSA point the finger of blame at itself? In reality, most of the recent disclosures originated with Edward Snowden. NSA hired him, or hired the contractor who hired him, and gave him access to pretty much everything. He took advantage, and ran off with the family jewels.[18] Why blame the media for reporting a fait accompli?

There are a couple of ways to look at the Snowden documents. When he left the U.S., he traveled first to China, then to Russia. His files could have been compromised in either place. If they were, then they’re already “out,” as it were, and most likely will percolate further into the international community. After all, China and Russia have allies, clients, business partners, etc. who would be most interested to know that kind of stuff.

Or, perhaps Mr. Snowden retains control of the documents. In that case he is the one releasing them. But they are getting out, this time to the media, and eventually will be published somewhere in the world. If Media Outlet A doesn’t do it, then Media Outlet B will, or if Media Outlet B is scared off, then Media Outlet C will step in, etc. And if the stories aren’t published in Europe, they might be picked up in Brazil, Mexico, Australia or wherever. Why complain about the publication? It’s inevitable!

So either way, as a practical matter many Snowden documents are available to our friends and enemies overseas, and no doubt more are on the way. But even so there’s one group that the intelligence professionals think should be protected from this kind of information. I’m speaking, of course, about the American Public.

Who knows, perhaps the public is the ultimate adversary to the Intelligence Community. After all, the public has documents it wants to protect; it’s been known to object to excessive Government snooping; and it has the power to stop things if they get out of hand. If so, why tell the public anything? Instead, let’s just counsel the domestic media to keep still.

That’s only speculation, and I hope the Government doesn’t think that way. Nevertheless we should all keep a watchful eye out for domestic censorship. Well-meaning Government types often think that they should edit the facts to help us better understand complex problems.[19] It’s not true, of course, but that’s the view.

An Unrelated Conclusion

And one final thought for all of you people in the Government who are trying to protect Top Secret stuff. Take a look at Benjamin Franklin for some good advice. He’s the one who said: “Three may keep a Secret, if two of them are dead.”[20] I read somewhere that our Government has over 900 thousand Top Secret clearances outstanding.[21] Could that be part of your security problem?

[1] The basic article is the guardian, Ball, Borger & Greenwald, Revealed: how US and UK spy agencies defeat internet privacy and security (5 September 2013) at http://www.theguardian.com/world/2013/sep/05/nsa-gchq-encryption-codes-security .

[2] See The New York Times, Perlroth et al., N.S.A. Able to Foil Basic Safeguards of Privacy on Web (September 5, 2013) at http://www.nytimes.com/2013/09/06/us/nsa-foils-much-internet-encryption.html?_r=0

[3] See Pro Publica, Larson et al., The NSA’s Secret Campaign to Crack, Undermine Internet Security (September 5, 2013) at http://www.propublica.org/article/the-nsas-secret-campaign-to-crack-undermine-internet-encryption

[4] See the blog of 09/07/2013, Charting the N.S.A. Furor (Version 4) at https://opsrus.wordpress.com/2013/09/07/charting-the-n-s-a-furor-version-4/

[5] The current fiscal year ends on September, 30, 2013, so no doubt a new budget was submitted in February, 2013, to take effect on October 1.

[6] The full name of the document released is:  FY 2013 Congressional Budget Justification, Volume 1, National Program Intelligence Summary (February 2012). You can get the title page from the Post or the FAS website. See notes 7 & 8. There are other volumes to the proposed budget. How much more does Snowden have and what has he given out? We’ll find out, I suspect.

[7] See, e.g., The Washington Post, National Security, Gellman & Miller, U.S. spy network’s successes, failures and objectives detailed in ‘black budget’ summary (August 29, 2013) at http://www.washingtonpost.com/world/national-security/black-budget-summary-details-us-spy-networks-successes-failures-and-objectives/2013/08/29/7e57bb78-10ab-11e3-8cdd-bcdc09410972_story.html?wpisrc=al_national

[8] Volume I is supposed to be 170+ pages. Of that The Post released the document cover, a unnumbered page dealing with classification, and pages 1-5, 9, 67-70, 74, 80, 84, 100, 133-138, 144-146, 151, & 154-169. You can find the pages released on the Post’s website, and on the website of the Federation of American Scientists, at http://www.fas.org/irp/budget/index.html Does The Post have Vols. 2, 3, etc.?

[9] Of course, this is just a paraphrase. For the original see Office of the Director of National Intelligence, IC on the Record,  ODNI STATEMENT on the Unauthorized Disclosure of NSA Cryptological Capabilities (September 6, 2013) (Henceforth, ODNI Sept. 6 Statement) at http://icontherecord.tumblr.com/ : “It should hardly be surprising that our intelligence agencies seek ways to counteract our adversaries’ use of encryption.  Throughout history, nations have used encryption to protect their secrets, and today, terrorists, cybercriminals, human traffickers and others also use code to hide their activities.  Our intelligence community would not be doing its job if we did not try to counter that. … While the specifics of how our intelligence agencies carry out this cryptanalytic mission have been kept secret, the fact that NSA’s mission includes deciphering enciphered communications is not a secret, and is not news. Indeed, NSA’s public website states that its mission includes leading ‘the U.S. Government in cryptology … in order to gain a decision advantage for the Nation and our allies.’”

[10] See ODNI Sept. 6 Statement. The actual language is: “The stories published yesterday, however, reveal specific and classified details about how we conduct this critical intelligence activity. Anything that yesterday’s disclosures add to the ongoing public debate is outweighed by the road map they give to our adversaries about the specific techniques we are using to try to intercept their communications in our attempts to keep America and our allies safe and to provide our leaders with the information they need to make difficult and critical national security decisions.”

[11] Wikipedia has a piece on this, but it needs work. You can find it at the Wikipedia website by searching “espionage,” or by clicking here: http://en.wikipedia.org/wiki/Spying

[12] See Washington, Writings (LOA, 1997) at To Samuel Huntington (September 26, 1780), p. 387 – 388.

[13] See Washington, Writings (LOA, 1997) at To Henry Clinton (September 30, 1780) at p. 388-89.

[14] See Washington, Writings (LOA, 1997) Instructions to Spies Going into New York (circa September, 1780) at p. 389-390.

[15] See, e.g., Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, (18 October 1907), at http://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=090BE405E194CECBC12563CD005167C8  :”A person can only be considered a spy when, acting clandestinely or on false [pretenses], he obtains or endeavours to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party.”

[16] See, e.g., 18 U.S.C. §2381 (Treason), available from the Cornell Legal Information Institute at http://www.law.cornell.edu/uscode/text/18/2381; 10 U.S.C. §906a (espionage) at http://www.law.cornell.edu/uscode/text/10/906a ; 18 U.S.C. §1831 (economic espionage) at http://www.law.cornell.edu/uscode/text/18/1831 ; and 10 U.S.C. §906 (spying) at http://www.law.cornell.edu/uscode/text/10/906

[17] See Office of the Director of National Intelligence, IC on the Record, Statement by Director of National Intelligence James R. Clapper on Allegations of Economic Espionage (September 8, 2013) at http://icontherecord.tumblr.com/

[18] “Trust not him with your secrets who, when alone in the room, turns over your papers.” That’s good advice from Johann Lavater, an 18th Century Swiss theologian. See Oxford Dictionary of Quotations (6th Edition) (Oxford, 2004) (henceforth we’ll cite this as “ODQ at __”) at Lavater p. 470, n. 13. So how could the Government adapt Lavater’s advice to NSA hiring practices? That’s easy: Use it during the job interview. Have the interviewer leave a pile of papers on his desk, then excuse himself and leave the prospect alone with them. Then wait to see what happens.

[19] See, e.g., ODQ at Westmoreland, p. 830, n. 18: “Vietnam was the first war ever fought without censorship. Without censorship, things can get terribly confused in the public mind.”

[20] See Franklin, Autobiography, Poor Richard and Later Writings (LOA, 1987) at Poor Richard 1735, p. 457.

[21] See The Washington Post, Live Q & A’s, Priest & Arkin, Top Secret America (July 21, 2010) at http://live.washingtonpost.com/topsecret-0721.html