It matters what the NSA does

It seems axiomatic that if we want to have an informed conversation about the legality, ethics, and policy implications of the NSA’s actions, it is useful to know what the NSA is doing. Yet a vocal subset of NSA defenders seem to be taking the contrary position, that information about the agency’s activities serves no public purpose.

Consider Tuesday’s Washington Post op-ed by Mark Thiessen. He argues that information about the NSA’s activities is just “espionage porn:”

As President Obama prepared to address the nation on surveillance, the New York Times revealed that the National Security Agency (NSA) has developed the capability to access computers that are not connected to the Internet. According to the Times, based on classified documents obtained from Edward Snowden, the NSA uses “a covert channel of radio waves that can be transmitted from tiny circuit boards and USB cards inserted surreptitiously into . . . computers” or in some cases “a briefcase-size relay station that intelligence agencies can set up miles away from the target.”

Evidence of another NSA plot to spy on Americans? Not at all. The Times reports, “There is no evidence that the N.S.A. has implanted its software or used its radio frequency technology inside the United States.” And the NSA confirmed that the “N.S.A.’s activities are focused and specifically deployed against — and only against — valid foreign intelligence targets.”

In other words, this (no longer) secret program poses precisely zero threat to American civil liberties.

So what is the redeeming social value of the Times’ story? What “abuse” is being revealed? Why is this something the public needs to know?

The answers are: None. None. And it isn’t.

Thiessen seems unaware that the Times was not the first to report on this capability—a German publication, Spiegel, had already published much more detailed information including the so-called “Spy Mall Catalog” detailing specific NSA “implant” technologies used for these attacks.

And of course it has been known for a long time that, even without any secretly implanted antennas, computers disconnected from the network can radiate information over a considerable distance. There are entire book chapters devoted to this, and the NSA itself has released non-classified articles about it.

Our adversaries surely knew all of this, even if DC pundits did not.

But even if this information was previously unknown, it would still have implications for the public debate. As Steve Vladeck argues, the NSA debate is not just about the legality of the agency’s actions, but also about whether they are good public policy—which surely depends at least in part on how they affect people internationally, especially our allies.

Of course, there might be a good argument in a specific case that publication of certain facts would cause national security harm that outweighs the benefit to public debate. Sanger and the Times have said that they will withhold facts if they believe this is the case. But Thiessen’s argument is not just that there is more weight on the national security side of the scale—he is arguing that there is nothing at all on the public debate side. “None.”

There is another subtext in the “espionage porn” argument that bears discussion: the label tends to get thrown at information that is technical in nature. The DC debate, which is dominated by lawyers, has no trouble accepting the relevance of every last detail of the statutory history of Section 215 or the wording of opinions in U.S. v. Jones. Yet somehow the facts about what the NSA is actually doing are seen as peripheral, if those facts involve technology.

Technical facts are not “porn.” They are more like an MRI—information about the patient’s body, yes, but information you need to get if you care about the patient’s health.