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"The Good Wife" Goes Beyond Metadata To Snowden Territory

BY Miranda Neubauer | Monday, October 7 2013

NSA Employees tracking Metadata on CBS' The Good Wife

CBS's The Good Wife took its regular focus on the intersection of law, technology and politics to a new level Sunday night with an episode that addressed the subject of online surveillance with parallel and overlapping storylines.

Earlier this year, techPresident noted that an episode of the show touched on Aaron Swartz, Anonymous and Internet activism. In recent weeks, both Wired and Slate have pointed out how the program is "the most tech-savvy show on TV" for its plot lines on everything from Bitcoin to robots in the workplace allowing employees to work remotely.

On Sunday afternoon, the creators of The Good Wife, Robert and Michelle King, participated in a panel on Television and Politics as part of the New Yorker Festival. Robert King suggested, somewhat jokingly, that one reason he became interested in online topics was that "most of the time writing is a form of procrastination." But he also said that the show is interested in "cases that no on else is really giving [serious attention to]," and tries to anticipate how the news cycle will develop. Other programs take a more superficial approach, he said, with "kids going online.... and ending up dead."

Asked about the show's general philosophy and perspective, Robert King said that the "show loves pragmatism, it doesn't like idealists." Michelle King added that many of the show's storylines suggest that being pragmatic "is not always a bad thing." The writers also emphasized that a theme of the show, which is set in Chicago, is that "politics does not just happen in D.C.," but also at work and in all parts of life.

That morally complex approach was evident in Sunday night's episode, in which the show not only explicitly questioned the limits of NSA surveillance and its impact on technology companies, but also continued to highlight how the idea of such surveillance can play out in the office and daily personal life. In doing so, it invoked many of the concepts that became commonplace in discussing the NSA revelations over the summer, including metadata, three-hop analysis, the FISA court and Edward Snowden himself.

Last night's episode, The Bit Bucket, opened with shots of phone conversations around the country and around the world and Internet searches being logged and tracked by the NSA. It turns out that the law firm of Lockhart/Gardner has been under surveillance for the past two years after one of its earlier cases involved a man suspected of having terrorist connections. The surveillance is being conducted by two young, eager, tech savvy, but also somewhat juvenile NSA employees, who are shown to be easily distracted by silly Internet videos of goats and pornography.

In one of the law firm's current cases, Chumhum, a fictional search engine and social media company with a Steve Jobs-like CEO, is seeking legal counsel on how to address user concerns about the company's cooperation with the government. "My users think I have sent every text, every personal e-mail to the U.S. government. This gag order prevents me from denying it. So what do I do?" the CEO asks the lawyers. The Lockhart/Gardner lawyers suggest suing the NSA to demonstrate that the company is pushing back against the NSA, by invoking the free speech concept of prior restraint against the gag order. "You have the same rights as the New York Times," one of the lawyers argues.

But unbeknownst to the Lockhart/Gardner lawyers, one of their phone calls about their intention to sue the NSA catches the attention of the NSA employees who have them under surveillance. Their superiors are also intrigued that lawyer Alicia Florrick, the show's main character, is married to the new governor of Illinois. The question for the NSA employees becomes whether the FISA warrant they were using for the law firm based on the client with the terrorist connection can extend to cover the firm's legal action against the NSA.

The firm's case against the NSA continues, but as the "prior restraint" argument fails, they move to a "selective enforcement" argument based on the case of another fictional technology company with a Mark Zuckerberg-like CEO. His firm did not receive a gag order about its cooperation with the government.

Meanwhile, the NSA employees are discussing with their superiors how far they can take their "two hop" warrant.

"Last time a person of interest contacted these lawyers was two years ago? " the superior asks.
"We can go from Marwat to his lawyers to his lawyer's contacts, that's all," the employee explains.

"And this has taken you to the governor-elect of Illinois. You're going into the governor's mansion, you need a more recent terrorist connection," the superior says. He tells them to find one in 36 hours to take to the FISA court.

The NSA employees protest that their focus had been the lawsuit.

"I don't have any issue with the lawsuit," the superior says. "My issue is taking a two-hop programmatic warrant into the governor's mansion?...Thank Edward Snowden. Everybody's cracking down now." Faced with the potential loss of the warrant, one of the employees notes dejectedly that "we were getting interested."

Back in court, the firm's lawsuit is running into trouble as the government requests a confidential recess in a Sensitive Compartmented Information Facility (SCIF). The Lockhart/Gardner lawyers can't participate because they don't have security clearance. They end up changing their strategy again to focus on $3 billion in monetary damages Chumhum has incurred by losing users due to its cooperation with the NSA. "When you lose with the Constitution, try money," Alicia Florrick says. However, that argument runs into problems when the government calls a Holocaust survivor to the stand. Because he and other survivors left the social network in protest over its refusal to delete Holocaust-denial content, the government argues the company's loss of users was not mainly attributable to the Snowden news.

But Lockhart/Gardner finds a new approach when it learns that the ChumHum CEO was under government investigation for trying to provide encryption tools to North Korean dissidents, who backed out in fear of the NSA. The Lockhart/Gardner lawyers themselves ask to be heard in the SCIF and argue that the association with the NSA amounted to a loss of the $14,000 contract for the circumvention technologies. The judge finds that the NSA gag order should stay in place, but awards Chumhum $14,000 in damages, yet places a gag order on any discussion of the damages. In the next scene, the CEO is appearing at a "TechWeek" event where he uses the outcome of the case mainly for his public relations benefit. "I'm very happy to report that I've just come back from federal court where my legal team won a major legal victory for ChumHum against these intrusions on all of our privacy rights by the NSA," he announces to loud applause. "Due to this gag order I am not at liberty to discuss the terms of the judgment, but suffice to say we are pretty happy today."

Meanwhile, the NSA employees learn that they have permission to "expand the scope" of the warrant to a three-hop with a focus on the proximity to the governor. Prompting the expansion are several supposedly suspicious calls to Alicia Florrick's home voicemail from a Somali national the NSA employees found by reexamining metadata. But what the NSA employees don't realize is that the calls were from her high-school age son's Somali ex-girlfriend who is upset that he broke up with her.

But those story lines were only one layer of the episode's focus on surveillance. The other layer stems from the fact that Alicia Florrick and otherLockhart/Gardner lawyers are secretly planning to exit the firm and steal several top clients. They have not yet told the partners, but one of them, family lawyer David Lee, is suspicious. In last week's season premiere, he seeks information on all the phone numbers called by the fourth-year associates using company phones in the past three months. Finding out they have frequently been calling top clients, Lee and the other partners call Alicia into their office. "I say we move past metadata and access their texts," David Lee says.

Following that meeting, Alicia warns her conspirators about using company phones. In Sunday night's episode, one of the conversations the NSA surveillance picks up is David Lee complaining to the partners that "the fourth years have stopped texting each other." In another scene, one of the departing lawyers has distributed burner phones to the others. Alicia herself seems to possibly be caught by David Lee using two different cell phones.

Last night's full episode The Bit Bucket will be available to watch on the CBS website for the next several weeks. Ted Humphrey, the co-writer of last night's episode, live-tweeted last night's episode and responded to a question on whether the NSA storyline would continue: "Watch and see :)"