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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

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


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

Talking to Strangers: An Introvert Hits the Streets: The NSA according to NCIS: Just a Few Bad Apples
Topic: Miscellaneous 9:26 pm EST, Dec  9, 2013

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

Lawfare › N.S.A.: “Not (So) Secret Anymore”
Topic: Miscellaneous 9:18 am EST, Dec  9, 2013

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”

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