Judge Richard Leon, a judge in the DC district court, has ruled that the NSA's bulk metadata collection should be stopped as violating the 4th Amendment

For the past six months I've been told that everybody knew that this sort of mass metadata surveillance was going on and that if you had paid attention to the policy debates over FISA for the past few years you would be aware that these programs exist and that they are legal and they are constitutional, and sometimes that Bush might have done something illegal but when Obama did it it was legal.

I've honestly been concerned that a tendency by our Congress to legislate after the fact in this area, as they did with the retroactive telecom immunity, coupled with a proactive PR campaign by the NSA which includes fictional TV shows as well as "news" programs, and a bunch of bad rationalizations and wishful thinking on the part of people who just don't want to deal with the realities of this controversy would add up to a situation where these people could go along telling themselves that its all legal and its always been legal and everyone has always known that it was legal, the way that we've always been at war with eastasia.

Judge Leon's decision puts a stop to all that nonsense. Now all of these people are going to have to take the controversy seriously. Now, it gets interesting.

Judge Says NSA Bulk Metadata Collection Unconstitutional, Issues Injunction | Techdirt

Former NSA General Counsel Stewart Baker is known for his long time opposition to what he calls the "privacy lobby" - political groups who advocate for laws that protect consumer privacy from corporate and government intrusions. This month he has taken this opposition to a new level with the announcement of the "Privy Award" - a tongue in cheek award for "Dubious Achievements in Privacy Law." The Award is intended to be a sort of dunce cap that can be bestowed by Baker and his online followers on advocates of what he perceives to be bad privacy law.

In his blog post announcing the creation of this award, Baker argues that the intent is to illustrate that privacy laws are always bad, and that privacy just isn't the sort of thing that laws should protect. In making this argument, he descends into a morass of logical fallacies and bad metaphors.

First, Baker compares privacy laws to prohibition and to laws against rudeness:

We teach our kids to respect the privacy of others, just as we teach them good manners and restraint in drinking alcohol. At the same time, no one wants courts and legislators to punish us for rudeness or prohibit us from buying a drink.

Let's start by addressing his comparison to prohibition. He writes:

We've already tried mandating abstinence from alcohol once. It didn’t work out so well. And it’s unlikely that Prohibition would have worked better if we’d made it illegal to drink to excess.

Of course, there is a pretty important difference between alcohol prohibition and privacy laws. Alcohol abuse is something that you do to yourself. It is whats known as a "victimless crime," in that the primary victim of the behavior is the person who chooses to engage in it. Conversely, there is no such thing as a self inflicted privacy violation. Its impossible to violate your own privacy!

The comparison to rudeness is perhaps more silly. Baker writes:

We know rude behavior when we see it, but no one wants a Good Manners Protection Agency writing rudeness regulations -- or setting broad principles of good manners and then punishing a few really rude people every year. The detailed regulations would never capture the evolving nuances of manners, while selective prosecution of really rude people would soon become a tool for punishing the unpopular for their unpopularity.

The reason that we don't want a Good Manners Protection Agency isn't because rudeness is hard to define, its because you have a Constitutionally protected right to be rude! Its called the the Right to Freedom of Speech, and any law against rude behavior would almost certainly violate it. Conversely, you do not have a Constitutional right to violate other people's privacy!

Baker goes on to commit a popular logical f... [ Read More (0.7k in body) ]

Stewart Baker's 'Privy Award for Dubious Achievements in Privacy Law' is a marathon of bad metaphors.

Jack Goldsmith paints a picture of a US IC that targets private companies in order to collect intelligence - an Occidental Persistent Threat:

If the suggestion is that the USG does not generally collect against foreign firms, it is wrong... Given the USG’s broad economic interests, and the tight link between economics and national security, one can assume that NSA collection of commercial and economic information is very robust.

He then goes on the argue that the US should not back down in targeting these firms:

It will also be interesting to see, if this scale-back comes to pass, how the USG will credibly convey that it has scaled back its global snooping.  It is not obvious to me that it can credibly convey this information, even if the restraints were embodied in public law.  And that fact might be the best argument that it should not scale back, since little concrete credibility can be gained (for the USG or U.S. IT firms), and much can be lost on the intelligence front.

In other words, there is no point in passing laws that constrain our intelligence services because no one believes that we obey our own laws anyway.

If the US isn't going to back down in targeting private companies, than foreign countries aren't going to back down either. The result is going to be a cyber cold war in which everyone who uses the Internet is a target. Over the long term this will have dramatic effects on the architecture of computer networks and the openness of the Internet in general as a platform for collaboration. People are already removing data from foreign cloud services because they are worried that it is exposed. If their systems are constantly targeted by spies when they use the Internet, they are going to use the Internet less often.

Good fences make good neighbors. We aren't going to have a global village if we can't respect each others privacy. We may be standing at the high-water mark - the place where the great wave of human interaction and interconnectivity that has been unleashed over the past few decades by the development of the Internet has finally broken, and is beginning to roll back.

Lawfare › Reflections on U.S. Economic Espionage, Post-Snowden

Whoever in the NSA has drinks with Donald Bellasario is counting on Ellie.

The television show NCIS appears to be part of the NSA's post Snowden charm offensive.

I'm looking forward to the episode where an investigation of a team member's 4 year old call records awakens ghosts from their past.

Talking to Strangers: An Introvert Hits the Streets: The NSA according to NCIS: Just a Few Bad Apples

I have rearranged the content linked blog post in order to make a point:

Why didn’t we just amend FISA and do it under statute?  It would’ve been easy at that time.

The answer I got from intelligence professionals was that we could not amend FISA without a public debate on why we needed to do it, and the public debate would’ve tipped off some of our targets.

The true answer was that the Bush-Cheney administration hated FISA.  They thought it impinged on Executive authority, and they were intent on exercising untrammeled Presidential power under Article II of the Constitution – as if Congress didn’t also have power to regulate interstate and foreign commerce under Article I.

We keep getting told that bulk meta-data collection needed to be kept secret because if terrorists knew that this was going on, they would change tactics in order to avoid it. I don't think there is any truth to this assertion. Everyone knows that the government has the ability to monitor telecommunications. Any terrorist operative has to assume that his phone might be monitored. Everyone knows that the telecoms store meta data. That meta-data can be requested by the government.

What tactical advantage is conveyed to terrorists by informing them that data which they know to be stored in a phone company database is copied into another database that the government operates? The simple truth is that there is no tactical advantage conveyed by this information.

The reason these programs weren't publicly disclosed is because they are illegal, because the American people don't approve of them, and because the bulk-meta data program in particular may violate Constitutional guarantees of Freedom of Association.

If you're the sort of person who believes in the virtue of maximalization of state power, and you don't have a lot of respect for constraints upon that power, whether legal or Constitutional, than proceeding without regard for public policy is the kind of thing you're apt to do. We should stop trying to rationalize this behavior as having some practical motivation.

This was the problem from the beginning with the Bush/Cheney approach to the GWOT. What is unfortunate, is that Obama ran as an alternative to that approach, and yet we find that he does not represent an alternative. In this respect Obama is far more sinister a character than Bush & Cheney. At least the conservatives are open about their embrace of totalitarianism.

Lawfare › N.S.A.: “Not (So) Secret Anymore”

As with King, it is this subversive aspect of Mandela’s legacy that is most in danger of being erased as he enters America’s pantheon of sanitized moral icons. But it is precisely the aspect that Americans most badly need. American power and human freedom are two very different things. Sometimes they intersect; sometimes they do not. Walking in Nelson Mandela’s footsteps requires being able to tell the difference.

Don’t Sanitize Nelson Mandela: He’s Honored Now, But Was Hated Then

noteworthy wrote:
Chris Loux:

People don't quit companies -- they quit managers.

I don't see that quote in the underlying article, but I've heard it before, and I want to say that I think thats utter bullshit. Its one of those memes that becomes popular with executive managers because it makes them feel good about themselves and sends a message that they want to send.

It makes them feel good because it makes them blameless - when talented people leave their company, its not REALLY because of the company's direction or the overall work environment, regardless of what they are saying when they go out the door. Executives can repeat this meme to remind themselves that the little people they lead don't really understand big things like corporate direction and strategy and the real reason they are leaving is because their first line manager isn't doing his job.

Corporate executives expect a certain amount of incompetency from first line management, because they think of themselves as being smarter than and better than first line managers, and this meme provides them a little confirmation of that feeling, every time the organization looses a talented person. It also allows them to ignore criticism of corporate strategy that is coming from below, especially when that criticism is so dire that people are looking for another job. In that sense, this meme is the sort of rationalization that bad leaders wrap themselves in as the ship goes down. It serves to isolate them from thinking about criticism and increases the rate of descent.

It also sends a message that they want to send - that first line managers, not executives, are at fault if the company cannot retain talented people and first line managers should feel that responsibility and fear the consequences of failure. It enables executives to put first line managers where they want them - with their backs against the wall, bearing all of the responsibility for what happens, but with no power to effect change.

I would line it up against: "Vision without Execution is Hallucination," alternatively attributed to either Edison or Einstein or Henry Ford, which is generally used in a "you employees better get to work on my vision like that smart guy once said" kind of way by executives. Anyone with two brain cells to rub together ought to realize that none of those people would have said something like that, and its absolutely cringe worthy to see such a modern phrase attributed to an ancient person by someone who expects to be taken seriously as a leader. The quote actually came from IBM executive Danny Sabbah in 2005.

RE: everyone quits so much

Cyberwar is a weapon of the strong, not the weak.  States with capable conventional militaries or economic clout are best positioned to exploit windows of opportunity created by cyber attack.  Capable states are also best equipped to deter or defend against cyber attack through asymmetric threats or uses of force.  The internet age thus increases, not undermines, existing hierarchies.

Lawfare › The Foreign Policy Essay: Erik Gartzke on “Fear and War in Cyberspace”

Scalia said the high court originally ruled that there were no constitutional prohibitions on wiretaps because conversations were not explicitly granted privacy protection under the Fourth Amendment, which protects against Americans against unreasonable search and seizure of "their persons, houses, papers, and effects."

That 1928 opinion, in Olmstead v. U.S., was overturned nearly 40 years later by the Warren court, which found, Scalia said, "there's a generalized right of privacy that comes from penumbras and emanations, blah blah blah, garbage."

"The consequence of that is that whether the NSA can do the stuff it's been doing ... which used to be a question for the people ... will now be resolved by the branch of government that knows the least about the issues in question, the branch that knows the least about the extent of the threat against which the wiretapping is directed," he said.

Sure sounds like a guy who really cares about Constitutional rights and takes his obligation to adjudicate them seriously.

This idea that the courts are the least equipped body to address these issues is "blah, blah, blah, garbage." The fact is that individual rights supposedly protected by the Constitution were not taken seriously in this country until the Supreme Court started taking them seriously.

The Court has a better process of evaluating issues related to Constitutional rights than the other two branches, because the members of the court are experts on the Constitution, and the court has a formal process for evaluating different perspectives on issues that makes it difficult to ignore inconvenient information or disfavored points of view.

If only the hearings and testimony that occur in the Senate were taken half as seriously as the filings that the Supreme Court receives. In fact they are theater, in which predetermined outcomes are justified through stacked witness lists and phony questions.

We know that formal, adversarial processes produce carefully considered results - we should leverage that knowledge more, not less.

Antonin Scalia expects NSA wiretaps to end up in court - Associated Press - POLITICO.com

After screaming for years about the PATRIOT Act...

Democrats, protective of the Obama administration, are less critical of the NSA; 37 percent say it “goes too far,” for example, vs. 47 percent of Republicans and 51 percent of independents. And Democrats are a broad 18 points less likely than Republicans and independents to think the NSA intrudes unjustifiably on some Americans’ privacy rights.

On the other hand..

Conservatives, and especially strong conservatives, are much more likely than moderates or liberals to think the NSA intrudes on privacy without justification.

I wonder what those conservatives thought about the NSA back in 2006...

In 2006, 75 percent of Republicans said the NSA program was "acceptable."

Most Americans trust the leaders of the party they are affiliated with, and their opinion on civil liberties issues flip-flops depending on whether or not a member of their party is in the Whitehouse. This is why we can't have a rational political dialog about anything. People in America believe what their party leadership tells them to believe.

Americans are blinded by partisanship