NSA Spying: An Interview with Law Professor Tung Yin

Tung Yin is a law professor at Lewis & Clark Law School in Portland, Oregon.

Lewis & Clark law professor, Tung Yin, recently spoke to computer and mobile phone monitoring software company, Mobistealth, about the ubiquitousness of the NSA in our lives and what, if anything, we can do about it. Yin specializes in national security law, criminal procedure, terrorism and federal criminal law. His work has been featured on national television and The Washington Post. The following are excerpts from his interview:

Mobistealth: For the first question, could you please tell me your perspective on the NSA in terms of cell phone tracking?

Tung Yin: Well, this is part of a much bigger picture of everything we are starting to find out about what the NSA has been surveying. There’s the cell phone tracking, there’s the emails, and now we’re finding out that the NSA has actually infiltrated Google and Yahoo as well. So this is one part of it. All of this information gathering pertains mostly to Americans, but also, we’re finding out, non-Americans as well. Some of it is apparently covered by court warrants, that is there are courts that have given approval for some of the surveillance, in other instances the government is claiming authority without court approval, raising a lot of legal and policy questions.

Mobistealth: Do you believe that Section 2:15 of the Patriot Act is a justifiable defense? It’s been used by the NSA a couple of times.

Tung Yin: Parts of the Patriot Act, I think, make sense because the old law was more appropriate in the mid-20th century, not applicable for cell phones in the 21st century. And there are parts of the Patriot Act that make it easier for the government to get and to share what we call foreign intelligence information and this is a lot of what the NSA is going after.

The standard that the police have to meet is what we call probable cause. It doesn’t require proof beyond a reasonable doubt as in the criminal trial standard. You do not have to prove a person is committing a crime with that level of certainty. You just have to have a good basis for believing it. Then the judge will issue a search warrant and that allows you to do what would otherwise be a violation of fourth amendment rights against illegal searches.

The Foreign Intelligence Surveillance Act of 1978 is not about gathering evidence of criminal activity, instead it’s about gathering foreign intelligence, which is useful for the government in terms of diplomacy and so on. But you still have to have a warrant. At least if you’re talking about Americans, you have to show probable cause that the person is an agent of a foreign power, that they’re somehow working for either a foreign government or foreign organization, including a foreign terrorist organization.

Now I could say it’s a little bit easier for the government in some ways. They don’t have to show that the target has committed a crime. They just have to show that the target is working for a foreign source. The Patriot Act made it easier to get that kind of warrant and for foreign intelligence analysts to share subsequent information with criminal investigators. Before 9/11 and the Patriot Act, it was harder to do that. One of the concerns that some civil libertarians have is that the government is trying to gather information for prosecution by obtaining foreign intelligence warrants. When people are complaining about the Patriot Act and whether it’s to blame and so on, that’s the aspect that relates to what the NSA is doing.

Mobistealth: LOVEINT is the code that’s used for intelligence that’s gathered on an NSA employee’s ex spouse or current spouse, or significant other. Do you think that average people can actually take any form of action against the government or the NSA?

Tung Yin: Well you probably can, there would be causes of action that you could raise about that, but the problem is typically you would only find out after the NSA shares your information with criminal investigators, who then use it to get to prosecute you. At that point, you may care a little less about the invasion of your privacy and more about making the government go away so you don’t get convicted. And you could file a motion to try to keep that evidence out.

When NSA employees are sharing this “Haha, look at what my ex is doing,” you may never find out. I mean obviously if you find out, it’d be embarrassing perhaps and you could bring a cause of action, what we call civil rights lawsuit for the violation of your privacy rights. But what’s more disturbing is if it’s happening to you or me or anybody else, how would we know?

Mobistealth: In the debate of personal privacy versus national security, do you think that the NSA’s actions are justified to an extent?

Tung Yin: You know, on one hand, the government is offering is tangible security, ‘look at these threats, we can stop these threats.’ And so you know, one aspect is more immediate, and the other, our privacy, is more diffused. And if you compare it like that, the tangible and immediate tends to win out. But it will always win out if that’s the way you look at it, and civil liberties will invariably be compromised.

Mobistealth: There is already information that the NSA has been extracting on the common man. Why hadn’t they been able to stop instances such as the Boston Bombings?

Tung Yin: I think there’s the concern that too much information is not a good thing because you can’t just process it, and, well, I don’t really recall where I saw this, but I know I read an account that on September 12 the government got around to decrypting some communications that it had intercepted from Al-Qaeda, and they decrypted a statement that said something about hour zero, or the game is now.

So, in other words, the government had something in its hands that indicated that something big was happening, but it didn’t get around to decrypting it until the day after 9/11 because there was just so much stuff they were processing. So, definitely it’s an oversimplification for the government to say, ‘we need more information, and if we have more information, we can stop this.’ But, if you are coming across a lot of threats every day, all of them might be bogus, or most of them on any given day might be bogus.

The question is, how do you sort through those? And maybe they have enough time to go through and get a regular sort of a warrant, and maybe they don’t. I think the government would say in the Boston bomber case, “Hey, if only we had just checked out either of those guys more in depth, we’d have issued warnings for other people. How were we supposed to figure out which of all these potential threats were real? If only we had looked at what those guys were researching on the internet, we might have found that the older brother was researching how to build these pressure cooker bombs.”

Mobistealth: The NSA has maintained checklists for dangerous words and a lot of people have started posting these dangerous words into their emails and online posts. How do you feel about that?

Tung Yin: Yeah, I know. That would obviously cause problems, although I think messing with the NSA is a high-risk proposition. I think that you’ve got one class of people, let’s say, journalists, academics, civil rights activists, where you’re going to be talking to people, perhaps, or reading things that might look suspicious to an outside observer. But that’s part of your job, and you can’t just not do your job because you’re afraid that the NSA is going to spy on you and wonder if you’re an enemy of the state.

Mobistealth: As far as we know, the NSA has never had a request for data rejected. Why do you think they felt the need to infiltrate data centers from companies such as Yahoo and Facebook, especially since these companies are the ones giving them the data in the first place?

Tung Yin: Well I think that’s hard to understand and answer. I wonder how much of it has to do with classified information. My guess is that the government’s answer might be something like, ‘When the service providers voluntarily turnover what it is that we’re asking them to turnover, they are doing a bit of filtering, that is, they are having a look through everything to decide what fits, and that we, the government, are concerned that they might be missing things, and so we want to check for ourselves.’ I’m not implying what they’re saying is right, but that’s what I’m guessing they might say.

Mobistealth: Do you think that people actually have any kind of options to keep their data safe and out of the NSA’s hands, or is this just something that they have to live with?

Tung Yin: There are some encryption programs that might provide some degree of privacy but the problem is how confident one would be that the NSA has not actually cracked those encryption schemes. And we wouldn’t know because the NSA would keep it secret. There’s probably not much that you can do if you are being targeted.

Mobistealth: In the light of our entire discussion, what advice would you offer someone who is concerned about the NSA?

Tung Yin: You know, I think just general, common sense advice would be to be careful about what it is that you’re sharing. Some people call this The New York Times test, that, how would you feel if this showed up on the first page of The New York Times. You can’t really live your life entirely like that, but, if you exercise a mode of caution in terms of what you send and how you send it, it’s probably a good thing generally, so that you don’t send emails that are overly harsh and which you wouldn’t send in a calmer moment.

Be more careful about what you share on Facebook or on blogs, etc. You know, what is useful, just not in terms of the NSA, but for protecting against identity thieves and other problems like that. I think a lot of this is relevant at the political participation level, which is, if people really care about privacy issues, there is a mechanism. It’s very slow, it’s hard to direct, but we’re in a democratic republic. We vote for our leaders and our leaders implement policies and if you don’t like what your leaders are doing, vote them out of office.

Now of course this is easier said than done because there are many different issues that people care about and you might like what your representative is doing on many issues and dislike one, so what do you do? What if the other candidate is worse? I think the most useful approach is getting more people to care about the issue; the more political voice you have, the more likely you are to get the attention of political leaders.