Here's How U.S. Intelligence Will Buy And Use Your Data

Edited by Sam Thielman

FOR YEARS, SEN. RON WYDEN (D-Ore.) and the cross-party coalition of civil libertarians with which he aligns have warned that U.S. intelligence is buying Americans' data from brokers in the ever-growing field of commercial data collection. Data brokers are companies, including advertisers, that collect and arbitrage the information you generate when, broadly speaking, you use the internet or a bank. Instead of ending the practice and pledging fealty to the Fourth Amendment's warrant requirements, the Office of the Director of National Intelligence (ODNI) last week issued guidelines on the purchase and use of "commercially available information" (CAI) that preserves what it calls its "flexibility to experiment." 

It's the latest example of how surveillance capitalism, our current economic reality, has created a market for what is functionally the hollowing out of the Constitutional requirement for the government to obtain a warrant from a judge based on probable cause of the commission of a crime before it can search your stuff. And, says the U.S. intelligence community, who are we to remove ourselves from that economic reality? Should only bad guys get to buy your data?

The data-purchasing framework issued by ODNI last week, which you can read here, creates rules for facilitating purchases, not hindering them, as much as they say that the "protection of privacy and civil liberties" will be "integral considerations." Most important is what's not here. ODNI's nine "general principles" don't require the intelligence agencies to purge any purchased data—something Wyden urged when data acquisition surpasses privacy guidelines set by the Federal Trade Commission. The ODNI framework envisions data purges only in cases calling for "enhanced safeguards," such as "in a result set returned in response to a query or other search of Sensitive CAI." Naturally, there's a caveat: "...unless the information is assessed to be associated or potentially associated with the documented mission-related justification for conducting the query or search." So, you just have to tell your supervisor the data you want to buy is mission-relevant. 

In most cases the framework envisions, the safeguards provided are just layers of internal review, something we know from other contexts will be a box-checking exercise. Those layers of review are meant to assess "whether the value of accessing or collecting the Sensitive CAI likely outweighs the privacy and civil liberties risks, data integrity and quality risks, security risk, and any other risks not detailed above, that cannot reasonably be mitigated." When the issue is framed that way, the outcome is predetermined. 

What does ODNI mean by "Sensitive Commercially Available Information?" Well, 

data that captures personal attributes, conditions, or identifiers that are traceable to one or more specific U.S. persons, either through the dataset itself or by correlating the dataset with other available information; and that concerns the U.S. person’s or U.S. persons’ race or ethnicity, political opinions, religious beliefs, sexual orientation, gender identity, medical or genetic information, financial data, or any other data the disclosure of which would have a similar potential to cause substantial harm, embarrassment, inconvenience, or unfairness to the U.S. person or U.S. persons described by the data; or 

(ii.) data that captures the sensitive activities of U.S. persons or persons in the United States, with sensitive activities defined as activities that over an extended period of time establish a pattern of life; reveal personal affiliations, preferences, or identifiers; facilitate prediction of future acts; enable targeting activities; reveal the exercise of individual rights and freedoms (including the rights to freedom of speech and of the press, to free exercise of religion, to peaceable assembly— including membership or participation in organizations or associations—and to petition the government); or reveal any other activity the disclosure of which could cause substantial harm, embarrassment, inconvenience, or unfairness to the U.S. person or person in the United States who engaged in the activity.

If past is prologue, this will include your nudes. More generically, we're talking about the kind of information that, I think it's fair to say, James Madison and the other architects of the Fourth Amendment wanted protected from the government, even if Madison couldn't have conceived of surveillance capitalism. Good luck making an original-intent argument before the similarly-purchased Supreme Court, though.

Also, U.S. intelligence can skip many of its alleged safeguards "if doing so is necessary due to exigent circumstances." And the public will have minimal visibility into how this all works in practice, as the framework says there will be a public report "every two years." Again, we know from other intelligence contexts that such reports will likely be misleading. 

Remember, ODNI is talking about large data sets put on the market here. In January, Joseph Cox of 404 Media investigated how "hundreds of thousands of ordinary apps" funnel user data into a tool called Patternz that can "track the physical location, hobbies, and family members of people to build billions of profiles." Cox reported that Patternz claimed in since-password-protected marketing materials to "analyze more than 90 terabytes of data every day" and to have built "profiles on more than 5 billion user IDs." Apparently Patternz can also push malware to users’ devices. Whatever will the layers of ODNI-mandated review conclude when it's time to assess commercially-available tools like Patternz or the commercially-available data they accumulate?

Here’s something to keep in mind when looking at the non-restrictions in this framework: U.S. intelligence is moving aggressively to adopt and integrate artificial intelligence. AI requires scale. The War on Terror shaped surveillance capitalism from the start. Now, whatever data U.S. intelligence can't unilaterally obtain, it'll buy. With your tax dollars. Can you smell the Lavender? 

CNN CITES THREE WHISTLEBLOWERS from the Israeli wartime prison of Sde Teiman, the place in the Negev Desert where the IDF takes their Gazan detainees, in reporting that it is:

a facility where doctors sometimes amputated prisoners’ limbs due to injuries sustained from constant handcuffing; of medical procedures sometimes performed by underqualified medics earning it a reputation for being “a paradise for interns”; and where the air is filled with the smell of neglected wounds left to rot.

Sde Teiman will earn a lot of comparisons to the War on Terror era of CIA and military interrogations: 

According to the accounts, the facility some 18 miles from the Gaza frontier is split into two parts: enclosures where around 70 Palestinian detainees from Gaza are placed under extreme physical restraint, and a field hospital where wounded detainees are strapped to their beds, wearing diapers and fed through straws.

"They stripped them down of anything that resembles human beings," said one whistleblower, who worked as a medic at the facility’s field hospital.

"(The beatings) were not done to gather intelligence. They were done out of revenge,” said another whistleblower. “It was punishment for what they (the Palestinians) did on October 7 and punishment for behavior in the camp."

But let's just linger on that earlier part, about—and here I take a deep breath because I know the history of the Holocaust—abuse camouflaged as medical care: 

Another whistleblower said he was ordered to perform medical procedures on the Palestinian detainees for which he was not qualified.

"I was asked to learn how to do things on the patients, performing minor medical procedures that are totally outside my expertise," he said, adding that this was frequently done without anesthesia.

KAYA JENÇ has a fascinating piece in The Dial about the political harassment of Elif Shafak, the famed Turkish novelist who no longer lives in Turkey. I had known about one prosecution Shafak endured because I went down a rabbit hole after loving her novel The Bastard of Istanbul, which is about the legacies of the Armenian Genocide. Jenç caught me a few weeks after finishing Shafak's similarly masterful The Forty Rules of Love, so I was primed to read about how relentlessly persecuted this extraordinary novelist is.

JOHN KIRBY, the White House's national-security spokesman, was asked on Friday if the departure of CIA Director Bill Burns from the Cairo ceasefire negotiations means the negotiations have collapsed:

On the status of where we are, yes, Director Burns is departing the region as previously scheduled, but interlocutors from other delegations are still in discussions in Cairo.  So, those talks are still going on.  His departure does not connote the end of the current round of negotiations. 

And obviously, we're going to stay in touch with those interlocutors.  We're not going to take our eye off of this.  We're going to stay engaged in the hopes that we might be able to land something.

"Interlocutors from other delegations" means the Egyptians and the Qataris. Burns now leaves them with the task of resurrecting a staggered ceasefire that Hamas agreed to last Monday and which the U.S. said last Tuesday was within striking distance of what the Israelis had earlier accepted. Now the Israelis are invading Rafah – regardless of whether, as President Biden says, it's not yet a full-scale invasion – in defiance of the United States. But if the Cairo process isn't dead, someone will need to sell a deal to the Israelis, and that is not going to be the Egyptians and the Qataris. 

BISAN ODEH, whose Instagram I check upon waking up to make sure she's OK, has deservedly won a Peabody Award. From al-Jazeera's write-up of her acceptance speech:

"To all the people who took to the streets. To all the people at home who are participating in boycotts. To all the people worldwide, regardless of their religion, color, and ethnicity,” she said in a statement.

"Regardless of what makes them different, they’re united in one mission: in their demands for a free Palestine. You deserve this award. And so do we. And one day, this genocide will end. And Palestine will be free. And we will welcome you here. On Gazan soil. All of you.

"Thank you so much for this award and for always supporting us, standing by us, and for continuing to do so until we reach our demands: an end to the genocide, a ceasefire, and a free Palestine."

Shame on the Pulitzers for not similarly honoring the Palestinian journalists of Gaza, who have produced crucial, innovative journalism under nightmarish conditions that most who sit on the Pulitzer board have never worked in, and more than 100 of whom have been killed in the course of—or for—doing their work. 

ELLE REEVE, Odeh's fellow Peabody winner thanks to Elle's groundbreaking Vice dispatch from Charlottesville in 2017, has written a fantastic book I've just finished called Black Pill: How I Witnessed The Darkest Corners of The Internet Come To Life, Poison Society and Capture American Politics. Somehow, every incel and alt-right chud talks to Elle, at great and often self-incriminating length. She possesses the rare skill to permit them to be full-fledged characters without for a second sacrificing the context of how loathsome their causes are. I caught myself reluctantly agreeing with an insight Elle attributes to Richard Spencer after January 6: When you redpill normies, what you get is QAnon. (Interestingly, Spencer is the only one of the alt-right who comes out of the book looking like a moron. The others come across as repugnant and devoted to evil, not stupid.) Reeve is also a gifted writer who knows how to pace a story well, when to insert herself, when to let the story tell itself, and other craft that journalism often under-rates. You'll want to pre-order Black Pill. 

WALLER VS. WILDSTORM, the superhero spy thriller I co-wrote with my friend Evan Narcisse and which the masterful Jesús Merino illustrated, is available for purchase in a hardcover edition! If you don't have single issues of WVW and you want a four-issue set signed by me, they're going fast at Bulletproof Comics! 

No one is prouder of WVW than her older sibling, REIGN OF TERROR: HOW THE 9/11 ERA DESTABILIZED AMERICA AND PRODUCED TRUMP, which is available now in hardcover, softcover, audiobook and Kindle edition. And on the way is a new addition to the family: THE TORTURE AND DELIVERANCE OF MAJID KHAN.