Posted tagged ‘FISA’

I’m All For The Rule Of Law. It’s The Judges I Can’t Stand

July 7, 2013

Via today’s The New York Times,* some big-time journalism on how the FISA court is creating an alternate judiciary — at least potentially more powerful, than the already compromised public one by which we thought American citizens encountered the law:

In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say

….

“We’ve seen a growing body of law from the court,” a former intelligence official said. “What you have is a common law that develops where the court is issuing orders involving particular types of surveillance, particular types of targets.”

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

Pedro_Berruguete_-_Saint_Dominic_Presiding_over_an_Auto-da-fe_(1475)

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”

I’m once again crashing deadlines, so I’ll leave off trying to write (n) words on a subject in which I have no particular expertise (the sound you hear is the peanut gallery cheering).  The only thing I can say both quickly and with a reasonable shot at validity is that we already know how this kind of thing, unchecked, plays out.  Secret courts trump even secret police as a threat  to both democracy and freedom of thought and expression.

We’ve seen how this works in plenty of prior examples — and not just in the bad decades of the 20th century either.  This isn’t where we should be now.

Over to you…

*This kind of piece is the reason I maintain my (Sunday) subscription to the Grey Lady.  The opinion pages may be a howling desert of intellectual mediocrity (w. the Krugman exception and a few others worthy of honorable mention) and outright mendacity (looking at you BoBo)¹.  But there is no substitute for the quality of journalism backed by real resources that the Times is capable of when it chooses.  I know it doesn’t always do so (Judith Miller, anyone).  But it still is the home of more of this kind of stuff than any other MSM outlet (that I can think of).  So, yeah, we still need the place, much as we need it do a whole lot better a lot of the time.

¹I’m not even going to go into the “It’s not nice, child, to point and laugh” division populated entirely by Master Ross Douthat.

Image:  Pedro Berruguete, Saint Dominic Presiding over an Auto-da-fe, 1475.

An Open Letter to Scott McNealy

June 10, 2013

Dear Mr. McNealy,

We’ve never met, but I was fascinated to read your tech overlord’s take on the NSA leaks:

In 1999, Scott McNealy, the chief executive of Sun Microsystems, summed up the valley’s attitude toward personal data in what became a defining comment of the dot-com boom. “You have zero privacy,” he said. “Get over it.”

MusÈe Bonnat - PsychÈ et l'Amour endormi - Peter Paul Rubens (ca. 1636)

Mr. McNealy is not retracting that comment, not quite; but like Mr. Metcalfe he is more worried about potential government abuse than he used to be. “Should you be afraid if AT&T has your data? Google?” he asked. “They’re private entities. AT&T can’t hurt me. Jerry Brown and Barack Obama can.” An outspoken critic of the California state government, and Mr. Brown, the governor, Mr. McNealy said his taxes are audited every year.

Really?  Well, probably:  AT&T or Google probably can’t do much to you.  But they can do a lot to the rest of us, not least in the framing of information — about politics, say — based on data gleaned from our internet habits.  They can or not serve given ads to us — including political speech — and so on.  And there is in essence no way, nothing even as seemingly rubber-stamp-ish as the FISA court, available to  any individual harmed by such behavior, even in the unlikely event one would be able to detect it.

The problem, as the article in which you were quoted  describes, is that creating a no-privacy regime on the internet served Silicon Valley capital well.  But it was supposed to be no secrets for me but plenty for thee, and it seems to shock you that you too, might be subject to review.  But hell, Scott — if you’ve done nothing wrong with your finances, you’ve got nothing to fear from an audit, right?

The bathos is rich with this one, in other words — but, amazingly, your argument gets worse as your quote goes on:

But arguing that computer makers have some role in creating a surveillance state, he said, “is like blaming gun manufacturers for violence, or a car manufacturer for drunk driving.”

The problem, Scott, is that gun manufacturers do bear significant responsibility for gun violence, given that the NRA, the leading enabler of unrestricted gun use in this country is essentially the gun maker’s lobbying arm, not to mention their marketing habits.

The auto line is a nice dodge, by the way.  Guns and Google, used as designed and within the law, put people or their privacy at risk.  Cars, used as designed, within the law, pose real risks that are deterred and/or insured against in various ways.  If there are defects in design, then yeah, the auto companies are responsible (Exploding Pintos, anyone?)  Drunk driving is not such a use, and throwing that up there conveniently shifts the argument away from what private industry has done with our privacy to their profit.

But the telling moment for me, Mr. McNealy came with your last quoted remark:

The real problem, he said, is: “The scope creep of the government. I think it’s great they’re looking for the next terrorist. Then I wonder if they’re going to arrest me, or snoop on me.”

Everything the government does is fine…until it may in some way impinge on the perfect life of one Scott McNealy.

I’m not saying that there’s no problem with the expansion of the security state.  I think there is, a big one, and I think it’s been building for a long time (at least 65 years, if not more), and I think it’s gotten much more acute since 9/11.  I do think that Obama has brought the security state much more in line with the forms of law than his predecessor — but I also don’t have much faith in such legal frameworks when they are themselves secret.

But I also think that a bunch of DFHs have been saying for a long time that the internet will not set us free, that, instead, absent real privacy protections it would become too easy to turn it into the most effective tool for state surveillance of its citizens ever imagined (insert “panopticon,” “Big Brother” or “digital Stasi” here, as you please).  You’ve been the poster child, or at least the most pithy slogan-maker for those who told us all to shove such concerns where the sun never shines.

In any event, Scott, wonder no more.  Yup, they are going to snoop on you.  They almost certainly already have.  Just like the rest of us.

Sucks to be in with the plebes, doesn’t it.

Yours,

Tom Levenson

(PS:  I’ll withdraw this snark and bile if and only if you do something meaningful to ensure your own and everyone else’s digital privacy.)

Image: Peter Paul Rubens, Psyche spying on sleeping Cupid, c. 1636.