The Impact of Klayman v. Obama

Screen-Shot-2013-12-16-at-3.22.19-PMThe December 16, 2013 ruling of Klayman v. Obama is especially relevant to the prospect of an artificially generated stampede.  D.C Federal District Court Judge Richard Leon, a 2002 George W. Bush appointee, presided over the case.

Judge Leon’s decision jeopardizes a portion of the federal government’s domestic surveillance operation — the NSA’s Bulk Telephony Metadata Program.  This program enables the all-encompassing collection of massive reams of cellular information (phone call identity, frequency, location and duration).  His decision suggests that NSA conduct is unconstitutional and violates the Fourth Amendment privacy rights of American citizens.  In the post-Edward Snowden leak era, this case is venturing into uncharted territory.  It is complex, controversial and will likely face a lengthy adjudication process.

The government’s position is that the comprehensive metadata collection and storage program serves as a valuable tool in combating terrorism.

Leon countered, “The government does not cite a single instance in which analysis of the NSA’s metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature.”  None of the three cases cited by the government illustrate how telephony metadata can prevent or protect against a terrorist attack involving any apparent urgency.

At some point, it’s reasonable to assume that the federal government will be pressured into providing legitimate evidence of how the bulk collection of telephony metadata can thwart a terrorist attack.  Since the stakes are immeasurably high and most law is determined by factual precedent (not vague speculation), the familiar “this is a classified matter involving sensitive national security which cannot be divulged” explanation will likely be insufficient.  But if pressed, the government could assert how the NSA program has become a necessary component in the safeguarding of “large, confined crowds.”

As it relates to an artificially generated stampede, or worst case scenario dominipede, such an assertion would be intentionally false.  Here’s why.  There is no viable way to control the fallout from a human stampede.  By definition, it is an event that unfolds in real-time.  Critical reactive decisions, such as the issuance of a presidential terror alert or internet shutdown order, could not be orchestrated in seconds by massive bureaucracies.  Furthermore, such actions would likely be ineffective without a prior degree of public awareness.  Most important, the notion that mitigation could serve as a feasible strategy for preventing or lessening the severity of a real-world, human stampede is simply implausible.  It does not make sense.

Now here’s what makes all of this particularly frustrating.  Although the NSA won’t admit to it, it’s “a given” that the agency has obtained cellular location and tracking metadata on crowds of 50,000+.  It’s also reasonable to assume they’ve been doing this since the means became available.  The methods of acquisition are numerous… cell phone tower dumps, mass trilateration (utilizing GPS tracking), Stingray technology (an electronic surveillance device that simulates a cell tower and captures information), season ticket holder lists, etc.

So let’s assume these “cellular footprint lists” exist.  The burden of proof would logically fall upon the U.S. government to prove otherwise.  Here are some relevant questions:

  • Does the federal government have a legitimate need in acquiring this information?  If the current (classified) justification involves the safeguarding of large crowds, this would be a blatant contradiction.
  • Is this information shared with other government agencies (FCC, DHS, FEMA, etc.), corporations and/or individuals?  How long is it stored?  Is it secure?
  • Has this information ever been sold?  Such information would hold tremendous value to those in the corporate arena or anyone with a nefarious agenda.
  • Does the U.S. government acquire metadata of large crowds in foreign countries (soccer stadiums, religious festivals, political protests and conventions, etc.)?

When I speak of artificially generated stampedes, I often use the term “discernible inevitability.”  It’s impossible to know the specifics of an event which has yet to transpire.  With certain aspects, one can only speculate and make generalizations.  But I do understand the “future trajectory” of mankind.  In the aftermath of an artificially generated stampede, whether here or abroad, I think there would be one overriding question.

  • Was there a list?

In the event of a dominipede, I suspect society would ask another question.

  • How could this have happened?

Simple questions like these would be front and center.  So when President Barack Obama reassures Americans that “nobody is listening to your phone calls” and Senate Intelligence Committee Chair Dianne Feinstein tells reporters, “this is just metadata,” I think it’s reasonable to conclude that they’re either oblivious, ill-informed or intentionally trying to deceive.

I’ll eagerly concede that I don’t have all the answers but I do have an important question.  I would implore any reporter to ask administration officials, “Could the metadata itself conceivably be used as an indiscriminate weapon?”