Section 802 of the FISA Amendments Act of 2008 is a blatant attempt to prevent this Court--and every other court, federal or state--from deciding whether the carrier defendants conducted dragnet, warrantless surveillance of millions of Americans' communications and communications records in violation of the Constitution and numerous statutes.

The carriers and the government portray section 802 as merely a decision by Congress about plaintiffs' remedies; after all, they say, plaintiffs may instead sue the government. But statutes cannot override the constitutional protections all Americans enjoy from the government's agents any more than the government itself can. This attempt to destroy plaintiffs' constitutional claims alone dooms section 802. Moreover, the sham proceeding established by section 802 violates due process in myriad ways.

But section 802 is far, far more: it is an attempt to manipulate the judiciary and subvert the Constitution. Underlying the Constitution lies the bedrock, structural principle of the separation of powers, by which the Framers sought "to assure as nearly as possible, that each branch of government would confine itself to its assigned responsibility. The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted."

Section 802 crosses those limits by explicitly giving the Attorney General the power to partially repeal previously enacted law, delegating standardless discretion to the Attorney General, and requiring courts to accept the Attorney General's factual findings without independent judicial review. It also violates the Constitution by giving the Attorney General the unilateral authority to gag the court and hide court processes from the plaintiffs and the public. Accordingly, this Court must find section 802 unconstitutional.

From the archive:

And Attorney General Ashcroft then stunned me. He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me — drawn from the hour-long meeting we’d had a week earlier — and in very strong terms expressed himself, and then laid his head back down on the pillow, seemed spent, and said to them, But that doesn’t matter, because I’m not the attorney general.

EFF Files Brief in FISA Case

Christopher Bronk, writing in First Monday:

Considerable debate surrounds the issue of wiretapping as a tool for the collection of intelligence in combating trans–national organizations employing terror tactics in pursuit of their political agendas. This paper argues that the language used to frame this debate is outmoded. At root conventional wisdom of the wiretapping issue in the United States is framed by a general consensus that fails to account for now ubiquitous digital means of communication. In addition, the issue of information security, the protection of computer networks, government and private alike, but often tied in some way to critical infrastructure, is inextricably linked to digital eavesdropping. The author argues that while attempts to understand the totality of network activity may be of great value in protection of critical infrastructure, this webtapping presents potentially grave implications for individual liberties and may produce limited payoffs in defeating terror organizations or cyber–attackers.

From the archive:

Said Diffie, "The future will be a golden age for intelligence."

See also, this important paper by Bellovin, Blaze, Diffie, Landau, Neumann, and Rexford:

Architecture matters a lot, and in subtle ways.

Webtapping: Securing the Internet to save us from transnational terror?

I see correspondences between Schrage's ideas here and Gladwell's new book.

As we set out on new innovation initiatives, it is a good time to reflect on the illusions that drag our success rates so low.

The amount of money you spend on research and development has little to no correlation with the quality of any kind of innovation that you do.

You do nothing and you get paid for it. I've aspired to that business model all my life, you know, but it's not sustainable for reasons of competition and customer dissatisfaction.

They could have run an experiment to give them insight ... But they wouldn't do it! And the basic reason for not doing it was not that they couldn't afford to do it, but that they didn't want to know. You know, you're in real trouble as an organization when you won't conduct a cheap experiment to learn something important about your business, your profitability, and your customers. And that is the innovation challenge that organizations face. It has nothing to do with how much you spend, but about what assumptions you're prepared to challenge.

(This is a republication of an interview conducted in 2006 and previously recommended here.)

See also:

I think the future of advice is a cool topic because it turns out that there really are differences between advice and recommendations.

Finally:

Innovations that make us more attractive, more effective, and more desirable are more likely to diffuse than those that don't.

An Interview with Michael Schrage

Society is approaching a turning point that could well determine the future of privacy. Policy-makers and business leaders soon will make decisions about technology practices that will either ensure that data is used for the benefit of individuals and society, or take us down a path where we are controlled by how others use our data.

Why do we say this?

A new tech savvy administration is entering office, with the likely entry of new appointees who are steeped in the privacy and tech policy debates. Joining them will be veterans of a campaign that broke new ground in maximizing online data use to connect to its audience. This intersection between privacy and a full appreciation of the value of data may provide an opportunity for policymaking that seeks to balance data use with user controls.

These factors all combine to bring us to a uniquely opportune moment. Individual companies have taken major steps forward. AT&T has committed to an affirmative consent model for behavioral targeting and other ISPs have joined in advocating that model. Yahoo! is collaborating with eBay and Wal-Mart to label ads and expand user choices. Microsoft is adding new privacy features to Internet Explorer, and AOL has launched an educational effort around behavioral targeting. However, there is clearly much more that can be done to create a movement to put trust at the center of decisions about data use.

From the archive:

Privacy is one of the most important concepts of our time, yet it is also one of the most elusive.

The Future of Privacy

"This week we learned that a number of Verizon Wireless employees have, without authorization, accessed and viewed President-Elect Barack Obama's personal cell phone account. The account has been inactive for several months. The device on the account was a simple voice flip-phone, not a BlackBerry or other smartphone designed for e-mail or other data services.

"All employees who have accessed the account - whether authorized or not - have been put on immediate leave, with pay. As the circumstances of each individual employee's access to the account are determined, the company will take appropriate actions. Employees with legitimate business needs for access will be returned to their positions, while employees who have accessed the account improperly and without legitimate business justification will face appropriate disciplinary action.

"We apologize to President-Elect Obama and will work to keep the trust our customers place in us every day."

From the archive, a CRS report on Selected Laws Governing the Disclosure of Customer Phone Records by Telecommunications Carriers:

Telephone records contain a large amount of intimate personal information. Recent years have seen a rise in the use of this information for marketing and even for criminal purposes. The purchase and sale of telephone record information, therefore, became a booming business. Websites and data brokers claiming to be able to obtain the phone records for any phone number within a few days abounded.

See also:

The actual work of obtaining the phone records was given to other subcontractors, one of which is said to have worked in or near Omaha. The methods were said to have included the use of subterfuge, a practice known as pretexting, in which investigators pose as those whose records they are seeking.

On the HP case:

"He was the most hawkish member of the board for finding the leaker," she added. "He wanted us to bring in lie detectors."

Personal Cell Phone Account Of President-Elect Obama Accessed By Unauthorized Employees

Nat Torkington:

An introduction to privacy issues around cloud computing, with an eye to the ubiquitous computing future of the cloud.

From the archive, Larry Ellison:

"The computer industry is the only industry that is more fashion-driven than women's fashion. Maybe I'm an idiot, but I have no idea what anyone is talking about. What is it? It's complete gibberish. It's insane. When is this idiocy going to stop?"

Web Meets World: Privacy and the Future of the Cloud

Consider the following four data points:

1. Six trillion dollars of wealth has been lost in home prices over the last year and a half.

2. Eighteen trillion dollars of wealth has been lost in global equities in only seven weeks.

3. Deleveraging continues to restrict accessibility to credit.

4. Job losses are accelerating.

From the archive:

When we all try to do it at the same time, we actually do less of it.

Time's Running Out for a Rally

We are at the beginning of what I call The Industrial Revolution of Data.

From the archive:

The Industrial Revolution wasn't all steam engines and textile mills. Beer production increased exponentially, as well.

Also:

Albert Einstein achieved scientific fame by asking questions and solving problems that nobody else had realized were problems.

The next big revolution will probably also come from an unexpected direction.

In 2005, Decius wrote:

Any student of Chinese history will tell you that when ignorance gives way to hubris you're one step away from a revolution.

Finally:

Edward Burtynsky is internationally acclaimed for his large-scale photographs of nature transformed by industry. Manufactured Landscapes – a stunning documentary by award winning director Jennifer Baichwal – follows Burtynsky to China, as he captures the effects of the country’s massive industrial revolution. This remarkable film leads us to meditate on human endeavour and its impact on the planet.

The Commoditization of Massive Data Analysis

Web spam is a widely-recognized threat to the quality and security of the Web. Web spam pages pollute search engine indexes, burden Web crawlers and Web mining services, and expose users to dangerous Web-borne malware. To defend against Web spam, most previous research analyzes the contents of Web pages and the link structure of the Web graph. Unfortunately, these heavyweight approaches require full downloads of both legitimate and spam pages to be effective, making real-time deployment of these techniques infeasible for Web browsers, high-performance Web crawlers, and real-time Web applications. In this paper, we present a lightweight, predictive approach to Web spam classification that relies exclusively on HTTP session information (i.e., hosting IP addresses and HTTP session headers). Concretely, we built an HTTP session classifier based on our predictive technique, and by incorporating this classifier into HTTP retrieval operations, we are able to detect Web spam pages before the actual content transfer. As a result, our approach protects Web users from Webpropagated malware, and it generates significant bandwidth and storage savings. By applying our predictive technique to a corpus of almost 350,000 Web spam instances and almost 400,000 legitimate instances, we were able to successfully detect 88.2% of the Web spam pages with a false positive rate of only 0.4%. These classification results are superior to previous evaluation results obtained with traditional linkbased and content-based techniques. Additionally, our experiments show that our approach saves an average of 15.4 KB of bandwidth and storage resources for every successfully identified Web spam page, while only adding an average of 101 microseconds to each HTTP retrieval operation. Therefore, our predictive technique can be successfully deployed in applications that demand real-time spam detection.

Predicting Web Spam with HTTP Session Information

Mark Danner:

Can you not hear the wheels of scandal spinning? It is the music of our age.

From the archive:

Eliot Spitzer certainly had no choice but to resign if, as it seems, he broke the law. But that still leaves the bigger question of whether the law is an ass.

Frozen Scandal