It's been much neglected in recent decades but the entire country would be better off if the NSA helped patch things. They're hoping some suspected bad guy doesn't get patched but odds are high that many Americans, particularly important IP-heavy businesses, are going to get exploited as well — and given all the reports about how e.g. bin Laden preferred to send messages using trusted couriers, that trade off doesn't seem very good.

I've got extremely detailed material in my library published within years of the end of WW1 the sorts of detail I honestly never expect to see again.

The long cold war "taught" them to not trust the public, and the global media environment and the Internet only multiply their concerns.

Even if they have reasons to release... Those are increasingly washed away by their fear. We the public grow to accept "infinite secrecy" inch by inch, it's the Overton Window and sadly it works.

A book I just read about the history of the KGB and GRU listed techniques they used to unmask CIA spies. Choice stuff. If the cultural atttache has three assistants, and two of them has offices next to the cultural attache but the third has an office in the maximum-security area, which one is the spy? If that third assistant was hired at the age of 33 to an employer that never hires anyone over 31? And did not go through the regular training? And is listed in the State Department's employee list as "Reserve", ie. not a regular officer? And so on. A long and embarrassing list, and it worked for decades. The CIA knew about it in 1964 (probably not in detail) but the Soviets still used thee techniques to unmask three CIA spies per week in 1980.

Maybe the real stupidity was to locate the spies' offices where they were. But the office lists were published, for decades. The employee list was published, including the "Reserve" marking, for decades.

Decades of experience do not automatically confer competence.

If you're the CIA and you know the Soviets are using this technique, you don't fix the problem, you use it to your advantage by letting the Soviets unmask the identities of lesser spies while not putting your most important spies on the employee list.

I am not even sure if the NSA's mission extends to defending civilians.

At least not fully enough, given the OPM breach.

There hasn't been any significant counterbalance for protecting the public. This is also something of a new threat analysis model for them: software usually fails completely and globally, whereas there's never been an equivalent where someone in Russia figured out something like how to shutdown every GE industrial generator in the world without physical access. If you are used to thinking of the world in the era before pervasive internet connectivity you're going to underestimate the cost of not fixing something.

Nobody has been fired for keeping information secret or using national security as an excuse to mislead the public and even the Congress, and there's been no penalty for using those laws to conceal mistakes or abuse. That speaks of a culture which values secrecy over almost any other concern.

So, yes, they have decades of experience – but I would argue those are decades of experience with the wrong understanding and incentives.

Here's a similar example. The British armed forces have decades and decades of experience of COIN. Yet they were bloody awful at it for most of the recent Iraq and Afghanistan debacles. The fact that someone who had a job fifty years ago and was good at is it meaningless. It only matters if the person who has the job now is good at it.

If you step back and look at terrorism and hacking and traffic fatalities on the same level you can make rational plans to actually help the most people - then assign tasks to the agencies. They certainly can't set their own goals.

So no, I really don't think the NSA has a rational (ie, cost/benefit) balance of attack/defense from our (citizens who want to live long wealthy lives) PoV. It's our job to regulate that.

So, every zero day they find and weaponize, is a zero day that they don't tell the vendor about. So to be able to be aggressive with exploits, they have to leave American computers exposed too, and hope nobody else has found the exploit. So even with the same budget looking for vulnerabilities, doing the right thing for one of their roles makes them worse for the other.

It's a bit like the encryption problem: An encryption system with a backdoor that the NSA has weakens American security too, because the backdoor itself is a valid intelligence target: Infiltrate the NSA, take the backdoor key, and anything the NSA can snoop into, someone else can too.

So doing both defense and offense without major tradeoffs requires having some kind of edge that nobody else can ever have: For instance, the rumored gigantic cluster that can crack specific SSH communications, which they expect nobody else to be able to replicate, just due to the cost of the hardware. That's a far more limited offense than what we know the NSA had at the time of the Snowden leaks.

So my guess, based on public information, is that they do trade-offs, and disclose the issues that they think are easier to find, while keeping around enough ammunition to have something against pretty much every target.

Given the proper motivation (neé, "a carrot-shaped stick"), a potential prospect will be inclined to accept the offer of employment.

Worse, they may even actively do a bad job in the hope of doing damage.

Plus, the whole idea of conscription is absurd.

No, conscription is most assuredly not the answer :)

It is indeed possible that if the NSA used a very different strategy with vulnerabilities, Iran might be further along with its nuclear weapons development.

Or rather, will always be possible until we move to doing protocol and behavior analysis of SCADA commands (as they enter the machine). And that'll just mean it has to get more subtle. If there's a way to do it right, there're more ways to do it wrong.

What they are extremely good at is using security claims to avoid ever having to see a real court. Most of the cases have been thrown out for lack of standing because it's hard to prove that you've been spied on when all of the details are classified.

It is valid to criticize the state secrets defense which keeps the NSA out of court – it's not valid to unilaterally decide what is and is not clearly unconstitutional.

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv0...

There's a simple rule I use for this: are they trying to prevent a court from discussing the mechanism?

You never see e.g. the FBI trying to argue that it'll endanger national security to acknowledge that they have the technical capacity to wiretap phones because that's clearly legal as long as they have a warrant. They might try to keep specific instances sealed (e.g. mob cases where retaliation is likely) but the capability and process is not secret.

As with the NSA, however, that changes once they exceed their legal authority and you see that when they do things like drop charges against known criminals rather than discuss how they used a Stingray to intercept cell-phone traffic. There's no reason to do that unless you know that the system isn't designed to follow the legal rules and thus would never survive a real court.

The constitution isn't a promise we-the-people made to government, it's how we-the-people define government.

Now it's okay that the NSA employees had different opinions, but what's not okay is that when called on their actions they used their interpretation of the constitution not just as a defense, but as a reason to continue. As if we owe the government its rights instead of the other way around.

Clearly unconstitutional according to anyone who cares about the will of the people they serve as opposed to the letter of the law.

If it were all up to judges the constitution wouldn't be on display and would be written in Latin or somesuch. But the constitution is public, readable and fairly plain. Now maybe the constitution is outdated. Maybe it should be changed. I don't know that. But from what the constitution reads at this point a number of these measures are manifestly unconstitutional, and it doesn't take a mosque full of Koranic scholars to ascertain that.

This is false, given that there is no settled jurisprudence until interpretation happens. If the Constitution said "there may be no dog-walking on Thursday", the constitutionality of dog-walking on Thursday would rest entirely upon the decisions of the judiciary with regards to its constitutionality (and this is important, as the court can functionally ignore provisions of the constitution under accepted judicial doctrine; being lashed to two-hundred-year-old thinking is not an inherent good and so plenty of escape hatches have been created over time).

> But from what the constitution reads at this point a number of these measures are manifestly unconstitutional

You speak imprecisely. You think (and maybe I do, too) that those measures are unconstitutional. Until they are ruled unconstitutional by a court (and the decision upheld on appeal, ruled on by the Supreme Court, etc. etc.), the most you can realistically say is that something might be unconstitutional. That's how checks and balances work--only the judiciary can say one way or the other, and that's by design.

Yes, we are ruled by the ones doing the retconning: that's what elections are for.

But I think you might be missing my point. The constitution is on display in the nations capital. Copies hang on the walls of courtrooms around the country. It is taught to school children. It is (in theory) the supreme law of the land.

If it were meant strictly for closed door interpretation by qualified individuals I doubt this would be the case. It would be like the bible during the dark ages. Only highly trained and qualified priests would be able to correctly understand it and pass their deciphering on to the masses.

The point is that we live in a democracy. We are entitled to read the agreement we are supposed to be living under and to ascertain that it is (or isn't) being followed. In theory, (if anyone gave a shit), we can then elect people who will appoint judges who actually follow the document rather than weaseling around it for who knows what purpose while keeping the masses in the dark.

Now, maybe the system is in need of overhaul for new times. But that is how it is supposed to work. Don't _ever_ feel you aren't qualified to ascertain an injustice or an infraction of the rules. And please don't suggest others don't have this right either. Down that path lies darkness.

> If it were all a matter of interpretation we wouldn't need an actual written constitution.

That sentence quite literally makes no sense; all writing is a matter of interpretation, writing something down doesn't remove interpretation without great effort; in fact that's what legalese is, an attempt to remove all possible interpretation (which still fails continually; thus judges) and the constitution is not written in that manner because it's a general outline, not an attempt at really creating practical law.

"No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen."

or this?

"All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills"

or this?

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

Now, I agree in portions such as this:

"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

That what comprises "public safety" is open to some degree of interpretation.

But the document, as a whole is not that opaque.

The intent is to be a transparent set of rules. Ones that you and I, as participants in a democracy can view and insist are followed. We can't just say "oh, judges know better" and leave it at that. That isn't a democracy, isn't representative and leads to a very bad place. We have to demand representation and a rule of law. We can't allow the law to be bent to the point it really isn't law anymore. We, as citizens, must be in control of our government. To do that, we must individually be able to read and judge the rules and ascertain if they are or are not being followed. And elect those who agree to uphold rather than subvert the process.

Just because you can find a few things that seems specific is in no way an argument against my point; I didn't say it had no specifics, I said much of it is vague and intentionally so. The real law of the land is the U.S. Code which is the actual law derived from the framework the constitution lays out. The notion that anyone can understand the constitution is simply wrong; without a correct legal grounding in common law and precedence you have no idea what the constitution actually means or how law is derived from it. Just because you can read a sentence does not mean you understand it the same way everyone else does nor that everyone agrees on what the words mean. That's why we have judges and precedence and a common law foundation, to guide the interpretation in a direction most can agree on.

Sorry, it isn't a "vague document" nor a "rough guideline". It is very specific on many points. Also, the idea that no one but trained professionals can read or understand if the document is being followed is not only wrong but abhorrent. Certainly, legally the judiciary is to interpret the law for implementation, I don't disagree. But again... we as voters have a right and responsibility to read the rules, to understand the rules, to ascertain if they are being followed and to vote accordingly. The ultimate power, in theory, resides with us, not with "trained professionals". This principal is of extreme importance for our system and seems to be quite often forgotten.

What you are asserting is that we are not ruled by written law, but by a judiciary, who feels themselves free to invent "escape hatches" to avoid old commitments now deemed undesirable.

You may not care for literal text, but a lawful society depends on it. Governments just doing whatever they feel is best at the moment aren't generally very robust. There has to be restraint over a judiciary. A limit to how far they can stretch things. Opinions vary on what this limit is, but, back to the original point, some aspects of NSA data collection, from my point of view very clearly exceed this limit as embodied in the constitution.

Probably the real answer is we need an update. A 200 year old document might not be the best guide for modern times. But you can only have authorities claim it is day when it is really night for so long without people starting to suspect corruption. And I think that's where we are at. Sadly.

It's hard. But that's intentional, too.

Were that to happen, how could you argue that they are wrong?

(I'm not saying I am describing something that is good. I prefer to live in the world of the descriptive when it comes to legal matters, rather than the prescriptive. There are things I want very much to see changed--but I recognize that the process that exists isn't going away.)

The Constitution doesn't say it works this way, and that was the document that was voted on by the representatives of the people. So whoever it was that decided it actually works a totally different way, why should I care what they think?

Then the legislature can make a new law which can nullify a judiciary's decision. Or the executive can just stop arresting people for the crime and then the judiciary never gets a say.

That's what checks and balances are.

Of course everyone always has the possibility of fighting; civil war is always an option. But if the <i>principle</i> is that the judiciary gets to make law just howsoever it pleases, then one loses the ability to call the government out on anything. It just becomes "that's not what I want" versus "that's not what you want".

Which is where we are at with this surveillance mess. Except that because we have a written Constitution with an explicit method for amendation, instead of an implicit right of amendment by Judiciary, we do have a basis for pointing out that the government is out of bounds and for demanding reform. Reject that and everything becomes legal and there is nothing you can do except complain that you don't like it.

This is how the government works. Yes, transition periods may be sloppy (people may be arrested for walking their dogs), but it will equalize.

Legislature makes an unjust law The executive can choose to enforce or not to enforce If the executive enforces, the judiciary can choose not to convict

Let's say for this specific scenario, assuming the surveillance isn't Constitutional (big assumption):

1: Executive begins doing something that's not Constitutional Judiciary chooses not to convict Law is nullified and executive will stop enforcing (what would be the point?)

2: Executive begins doing something that's not Constitutional Judiciary chooses to convict (the law is now officially Constitutional) Legislature disagrees with convictions and can pass specific laws outlawing the original executive actions, OR revoke the original law which allowed the unconstitutional interpretation

This is all by design. This is how it's meant to work. Just because you don't think it's working in your favor does not mean it's broken.

I'm not sure we disagree. You seem to be arguing that no one branch is the final arbiter of what is constitutional; that each is allowed its independent opinion. I agree with that. What I was arguing against in this thread is the proposition that the judiciary alone gets to decide what is constitutional and that it gets to do so regardless of what the constitution actually says.

You ended with "This is all by design. This is how it's meant to work," which is a claim that only makes sense if we have a system where the constitution actually means something and its meaning is binding. If the judiciary is free to redefine the constitution however they want, then we are not living under a government that has a design or a correct way to work.

Its like trying to referee a football game while locked in a windowless basement 1000 miles away. The only information you get is that at half time a note is slipped under the door reading "No one has broken the rules".