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"I don't think the report is true, but these crises work for those who want to make fights between people." Kulam Dastagir, 28, a bird seller in Afghanistan

A blast from the past.
Topic: Miscellaneous 9:19 am EST, Dec 29, 2013

Justice William O. Douglas, dissenting - 1972:

The present controversy is not a remote, imaginary conflict. Respondents were targets of the Army's surveillance.... the surveillance was not casual, but massive and comprehensive...

Surveillance of civilians is none of the Army's constitutional business...

This case involves a cancer in our body politic. It is a measure of the disease which afflicts us. Army surveillance, like Army regimentation, is at war with the principles of the First Amendment. Those who already walk submissively will say there is no cause for alarm. But submissiveness is not our heritage. The First Amendment was designed to allow rebellion to remain as our heritage. The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance. The Bill of Rights was designed to keep agents of government and official eavesdroppers away from assemblies of people. The aim was to allow men to be free and independent and to assert their rights against government. There can be no influence more paralyzing of that objective than Army surveillance.

When an intelligence officer looks over every nonconformist's shoulder in the library, or walks invisibly by his side in a picket line, or infiltrates his club, the America once extolled as the voice of liberty heard around the world no longer is cast in the image which Jefferson and Madison designed, but more in the Russian image, depicted in Appendix III to this opinion.

APPENDIX III TO OPINION OF DOUGLAS, J., DISSENTING

Alexander I. Solzhenitsyn, the noted Soviet author, made the following statement March 30, 1972, concerning surveillance of him and his family (reported in the Washington Post, Apr. 3, 1972):

"A kind of forbidden, contaminated zone has been created around my family, and to this day, there are people in Ryazan [where Solzhenitsyn used to live] who were dismissed from their jobs for having visited my house a few years ago. A corresponding member of the Academy of Sciences, T. Timofeyev, who is director of a Moscow institute, became so scared when he found out that a mathematician working under him was my wife that he dismissed her with unseemly haste, although this was just after she had given birth and contrary to all laws. . . ."

"It happens that an informant [for his new book on the history of pre-revolutionary Russia] may meet with me. We work an hour or two, and, as soon as he leaves my house, he will be closely followed, as if he were a state criminal, and they will investigate his background, and then go on to find out who this man meets, and then, in turn, who that [next] person is meeting."

"Of course, they cannot do this with everyone. The state security people have their schedule, and their own profound reasoning. On some days, there is no ... [ Read More (1.3k in body) ]


The First Amendment is underestimated in the surveillance debate.
Topic: Miscellaneous 8:26 pm EST, Dec 28, 2013

We now have two district court rulings on the legality and constitutionality of the NSA meta-data surveillance program. One decision, from Judge Leon, concludes that the program is likely unconstitutional, and the other decision, from Judge Pauley, concludes that the program is lawful and is not unconstitutional. Thus the stage has been set for a debate at higher levels of the court system.

This debate has thus far focused primarily on the Fourth Amendment questions raised by this surveillance program, as well as the statutory questions. On the Fourth Amendment front, Judge Pauley relies on a traditional interpretation of Smith v. Maryland, holding that the government can obtain your phone records, without probable cause or a warrant. Judge Leon presents a newer perspective that the broad scope of this NSA meta-data surveillance program makes it an unreasonable search even though a search of a more limited scope might be reasonable. On the whole, Judge Pauley's approach is more in line with the way that courts have addressed these Fourth Amendment questions in the past, and there are strong arguments that the courts should stick to this traditional approach, such as those made by Orin Kerr.

Unfortunately, the First Amendment issues seem to be a secondary concern in this debate. Judge Leon didn't address them. Judge Pauley spent a few paragraphs on them in his decision. However, numerous commentators on Pauley's ruling have skipped over that section. For example, Benjamin Wittes didn't include the First Amendment as a "key issue" in his blog post about Judge Pauley's ruling.

I think that the First Amendment issues deserve closer consideration. A program that collects telecom metadata is a program that collects information about a person's associations. We have a right to freedom of association, and that right is obviously impacted on some level by government surveillance of it's exercise. Any desire or expectation that we have that our telecom meta-data should remain private must stem from a desire to be able to exercise our right to freedom of association without government scrutiny. (See Freedom of Association in a Networked World: First Amendment Regulation of Relational Surveillance by Katherine J. Strandburg, NYU)

Judge Pauley dismisses the First Amendment concerns with this program for two reasons, neither of which I find completely persuasive. The first reason is the principle that the First Amendment does not prohibit the government from performing searches that are considered reasonable under the Fourth Amendment. The idea that the framework of the Fourth Amendment provides adequate protection against the impact that searches can have on First Amendment rights is a decent rule o... [ Read More (0.8k in body) ]


Asking the N.S.A. the Right Question : The New Yorker
Topic: Miscellaneous 2:17 pm EST, Dec 18, 2013

Thurgood Marshall, disenting, Smith vs. Maryland

The prospect of unregulated governmental monitoring will undoubtedly prove disturbing even to those with nothing illicit to hide. Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts. Permitting governmental access to telephone records on less than probable cause may thus impede certain forms of political affiliation and journalistic endeavor that are the hallmark of a truly free society. Particularly given the Government’s previous reliance on warrantless telephonic surveillance to trace reporters’ sources and monitor protected political activity, I am unwilling to insulate use of pen registers from independent judicial review.

Asking the N.S.A. the Right Question : The New Yorker


My day at the NSA: A pr campaign for secret surveillance programs | MSNBC
Topic: Miscellaneous 12:33 pm EST, Dec 18, 2013

What became increasingly clear as the day wore on is how unable the NSA is to appreciate the possibility that the rules themselves might be legally or constitutionally invalid. Perhaps the metadata program which collects electronic records is not authorized by Congress or is prohibited by the Constitution. Several of the officials bristled at any suggestion that the agency was actually exceeding its legal authority, even though there are good arguments on both statutory and constitutional grounds.

My day at the NSA: A pr campaign for secret surveillance programs | MSNBC


The NSA meta-data surveillance program is both illegal and unconstitutional: The cliff's notes version
Topic: Miscellaneous 11:14 am EST, Dec 18, 2013

It has become increasingly clear that many politicians who support the NSA meta-data surveillance program do not understand the substantive arguments against that program. Although the arguments have been made in numerous forums, I'm not sure that they have all been collected in a single brief. The purpose of this blog post is to summarize the key points in plain language that is easy to understand.

There are three key points.

1. The meta-data program is not authorized by law.

If Congress had intended to authorize the NSA to collect all business records everywhere, you'd think they would have written a statue that actually says that. However, Section 215 of the PATRIOT ACT only authorizes the collection of business records if those records are relevant to a terrorism or foreign intelligence investigation. If you ask most Americans if they think their personal phone records are relevant to a terrorism investigation, they are going to say no. Therefore, there are serious questions as to whether this statute actually authorized such a broad records collection program.

The counter argument that has been made in defense of the program is that any business record is relevant to a terrorism investigation if the reason that the NSA wants the record is because they are investigating terrorism. The argument goes that the purpose of the "relevance" limitation is to prohibit the NSA from collecting records for a project that has nothing to do with intelligence or anti-terrorism work. Its hard to imagine a project at the NSA that might involve the collection of domestic business records that has nothing to do with anti-terrorism or counterintelligence work, but according to the defenders of the meta-data program, the "relevance" language was intended to prohibit the use of this authority for those kinds of projects.

Frankly, if Congress intended to authorize the collection of everyone's meta-data, they should have written a statute that clearly said so.

2. The meta-data program violates the First Amendment to the Constitution.

The Constitution protects the right to freedom of association. Telecom meta-data is essentially a record of your associations - who you communicate with, when, and for how long. If the government keeps tabs on your associations and stores that information for years, this might deter your free exercise of your right to associate with other people. You might reasonably fear that your associations could come back to haunt you, and you might choose, therefore, not to communicate with someone that you want to communicate with.

This concern is rational even if the current government would not sanction you for the company that you keep. The records of your associations are kept for a long time, and if a future government decided they didn't like one of your associates, the records of your association with that person would be available for them to examine. Given the history ... [ Read More (0.4k in body) ]


Snowden speech to EU parliament could torpedo US trade talks | ITworld
Topic: Miscellaneous 7:18 am EST, Dec 18, 2013

Rep Mike Rogers:

"You get three pieces of a 1,000 piece puzzle and you think you have all the answers. Just because the NSA has a phone number doesn't mean it listens to the phone calls," he said.

Maybe the reason that our political leadership supports mass surveillance is because they are simply too stupid to understand the objections to it.

Snowden speech to EU parliament could torpedo US trade talks | ITworld


The Domino's Hypothetical: Judge Leon vs. the N.S.A. : The New Yorker
Topic: Miscellaneous 12:35 am EST, Dec 17, 2013

THIS:

What his ruling does is deprive the N.S.A. of the argument of obviousness: the idea that what it is doing is plainly legal, plainly necessary, and nothing for decent people to worry about.

This judge is worried...

We hear a lot, he writes, about the expectation of privacy, and how it has disappeared in this day and age—don’t we all know we leave digital trails that can be followed? If we have given up on the privacy of our metadata, Judge Leon writes (quoting Smith in part), “I would likely find that is the result of ‘ “conditioning” by influences alien to well-recognized Fourth Amendment freedoms.’ ”

In other words, cynicism does not give the government a pass when it comes to its constitutional obligations. And neither should the courts. We are allowed to expect more.

The Domino's Hypothetical: Judge Leon vs. the N.S.A. : The New Yorker


Judge Says NSA Bulk Metadata Collection Unconstitutional, Issues Injunction | Techdirt
Topic: Miscellaneous 3:33 pm EST, Dec 16, 2013

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


Stewart Baker's 'Privy Award for Dubious Achievements in Privacy Law' is a marathon of bad metaphors.
Topic: Miscellaneous 4:10 pm EST, Dec 12, 2013

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.


Lawfare › Reflections on U.S. Economic Espionage, Post-Snowden
Topic: Miscellaneous 12:41 pm EST, Dec 10, 2013

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


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