It is a crisis of the elites. Scotland’s push for independence is driven by a conviction — one not ungrounded in reality — that the British ruling class has blundered through the last couple of decades. The same discontent applies to varying degrees in the United States and, especially, the eurozone. It is, in many ways, a defining feature of our time.

The rise of Catalan would-be secessionists in Spain, the rise of parties of the far right in European countries as diverse as Greece and Sweden, and the Tea Party in the United States are all rooted in a sense that, having been granted vast control over the levers of power, the political elite across the advanced world have made a mess of things.

Scotland’s Independence Vote Shows a Global Crisis of the Elites - NYTimes.com

A sense of entitlement sits more naturally beside a sense of grievance than most people realize

Scotland as Quebec: The lessons Britain can learn - The Globe and Mail

Any theory of human behavior that assumes that the singular purpose of humans is to maximize economic benefits is wrong. Humans have other motivations that are incomprehensible to the economic model but can be empirically demonstrated to be powerful.

The Origins and Implications of the Scottish Referendum | Stratfor

In the beginning there were bulletin board systems. Many thousands of small bulletin board systems, most of which were run by individuals out of their homes, and could only support one user at a time. There were also larger bulletin board systems. Some could support hundreds of simultaneous users and were sustainable businesses - people paid subscription fees to access them. There were also large commercial online services that could support millions of subscribers.

Thats what a healthy competitive ecosystem looks like - lots of players of different sizes, doing their own thing. An open door for innovation, even by hobbyists. You didn't even have to know how to develop software in order to run one of these communities, because lots of people ran them, and software to do so was readily available.

Part of the reason that it worked, is that we all had the same kind of network connectivity. The quantum unit was a single phone line. Anyone could do, in their homes, everything that the big guys were doing. The big guys had more lines, but they were the same kind of lines.

That changed in the late 1990's. We replaced phone lines and ISDN circuits with ADSL circuits and Cable Modems. These circuits were asymmetrical - they couldn't send as much data as they could receive. As a consequence, it wasn't possible for someone to do, in their home, what commercial services were doing in commercial data centers, and if you wanted to put your own computer in a commercial data center, that was potentially very expensive.

As a result, the ecosystem changed. Individuals were much less likely to run online communities. Interaction on the Internet became consolidated in centralized services like Facebook and Youtube. Because building your own small community was expensive, a market didn't develop to support that activity. No one makes good software for people to run their own social network out of their homes.

Now we have a debate going on about "Net Neutrality." The idea is that Internet ought to be a level playing field for innovation. In order to create that level playing field, we're all supposed to get the same kind of pipe. If you remember the ecosystem that we had in the early 1990's, this idea sounds like it might be attractive. If we all have the same raw materials, we can compete more readily with each other. There is a whole lot of money that is being invested in Net Neutrality activism and there are a whole lot of people who support the idea.

However, when you dig a little deeper, it becomes apparent that the activists aren't really arguing in favor of net neutrality for you and me. They don't care if individual Internet users are able to host services easily and inexpensively. They don't care about ending port filtering of consumer Internet connections or enabling consumers to get access to symmetric pipes. They want a level playing field between all the big players who are donating money to them - the Googles,... [ Read More (0.3k in body) ]

Yesterday Paul Rosenzweig pointed out an interesting law review article regarding the Fourth Amendment in the context of a nuclear terrorism scenario. The Fourth Amendment protects us against "unreasonable" searches and courts have ruled that the police do not have to establish probable cause or get a warrant in order to perform a search if that search occurs in a narrow set of circumstances that are thought to be "presumptively reasonable." In fact, in most national security contexts, warrantless searches are thought by the courts to be presumptively reasonable as far as the Fourth Amendment is concerned, and its not much of a stretch to imagine that they'd be allowed in a "Jack Bauer" scenario where the hunt is on for a nuclear terrorist.

What struck me as troubling about this article wasn't its main argument, but rather, a footnote. The article concludes that in a scenario where there is a high probability of a serious attack, the Fourth Amendment might allow for searches without probable cause. However, it struggles with how to handle the scenario where there is a risk of a serious attack, but there is a low probability of the attack actually happening. At this point the author does something interesting - he looks forward to a future in which technology will solve this problem, by liberating law enforcement from the Fourth Amendment's restrictions on mass surveillance. He writes:

"The most difficult question to resolve is the one where there is a low probability of a high consequence attack. One day, technology may provide a solution. 278"

Footnote 278 continues:

"278 To the extent that voice-to-text transcription technology for wire communications evolves in the future to a point at which automated processes can accurately screen the content of the communications, the use of such technology, coupled with minimization on the front-end, would prevent any “human observation” of the content of the communications. Compare Google, “How Gmail Ads Work,” available at https://support.google.com/mail/answer/6603?hl=en (“Ad targeting in Gmail is fully automated, and no humans read your email or Google Account information in order to show you advertisements or related information.”) with Orin Kerr, Searches and Seizures in a Digital World, 119 HARV. L. REV. 531, 535 (2005) (a Fourth Amendment search is best described as the process by which “data is exposed to human observation”).

What the author is saying here is that if the government uses a computer to search the content of your phone calls, or your emails, or anything else, for that matter, that isn't technically a "search" as far as the Fourth Amendment is concerned. Therefore, they don't need a warrant. They don't need probable cause. They can just do it. And this argu... [ Read More (0.4k in body) ]

I posted audio of the ACLU vs. Clapper hearing to the Internet Archive.

Audio recording of Oral Arguments at the Second Circuit Court of Appeals in New York City in the case ACLU vs. Clapper, recorded by 
C-SPAN on September 2nd, 2014. 

program.362841.MP3-STD : C-SPAN : Free Download & Streaming : Internet Archive

Sometimes I feel like its necessary to burn down a straw man, because so many people seem to be propping him up.

Fans of the mass domestic telephony metadata surveillance program operated by the NSA would have us believe three things simultaneously.

1. The program is perfectly legal.
2. The program was publicly disclosed in the pages of the USA Today in 2006, so everyone knew about it and everyone agreed that it was legal.
3. The program had to be sheltered from judicial review in order to prevent Al Qaeda from finding out about it.

As ridiculous as this narrative is, there seems to be an awful lot of people who believe it.

Lets review the actual history of what happened here.

These programs were started during the early years of the Bush Administration, in a context where a lot of other things were going on, including mass monitoring of domestic telecommunications content (at least at the 2001 Winter Olympic Games), the indefinite detention of U.S. citizens without charges (see Jose Padilla), and the elimination of the restrictions on torture.

Its not as if Congress passed the Patriot Act with the intention of authorizing a program like this. The legal rationale for the mass meta-data surveillance program, at the outset, had nothing to do with Section 215 of the Patriot Act. The legal rationale was that the President, acting under his Article II authority to defend the security of the United States, cannot be constrained the other two branches of the federal government.

Over hundreds of years our society has accumulated a number of constraints upon executive power, such as the Writ of Habeas Corpus, the Fourth Amendment, and Geneva Conventions. We accumulated these constraints because we learned the hard way that if they are not in place, people do bad things. In fact, when the Bush Administration removed these constraints, bad things happened. Those bad things were an inevitable and predictable consequence of the kind of leadership that they engaged in.

After Bush was re-relected, someone leaked word of this mass meta-data surveillance program to the USA Today, and a fight ensued between Dick Cheney, who argued that the President can do whatever he wants under Article II of the Constitution, and Arlen Specter, who tried to negotiate review of these programs by the FISA court. In the end Mr. Specter won.

This is when I did something that over the past year fans of the mass surveillance program have repeatedly ridiculed me for doing - I gave our system the benefit of the doubt.

The IC said that they couldn't submit these programs to open judicial review in order to protect sources and methods, so there had to be a secret court. I trusted that the secret court would not approve aspects o... [ Read More (0.4k in body) ]

The NSA, Neuberger said, has suffered a particularly “long and challenging year” dealing with the public loss of trust following the Snowden revelations. The agency is reviewing all of its activities to determine how to regain that trust. One change is more open engagement with the public. “This presentation is a starting point."

Anne Neuberger: Inside the NSA - The Long Now

The Second Circuit Court of Appeals in New York City heard oral argument in ACLU v. Clapper, which challenged the National Security Agency’s (NSA) phone records surveillance program.

ACLU v Clapper Oral Argument Phone Record | Video | C-SPAN.org

Kevin Kelly:

If we could climb into a time machine and journey 30 years into the future, and from that vantage look back to today, we’d realize that most of the greatest products running the lives of citizens in 2044 were not invented until after 2014.

You Are Not Late — The Message — Medium